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2022 (9) TMI 19 - AT - Insolvency and BankruptcySeeking directions against the Resolution Professional of Corporate Debtor, for admitting his claim in the Resolution Plan and to be treated as secured Financial Creditor - seeking condonation of 60 days delay in filing this Appeal - Appellant has shown due diligence in submitting the claim before the IRP/Resolution Professional or not - admitting the claim at a time when the Resolution Plan has already been approved by the CoC and is pending consideration of the Adjudicating Authority - Tripartite Agreement between the Appellant, Corporate Debtor and the borrowers/Homebuyers. HELD THAT - Since the Resolution Plan has not only been accepted by the CoC but also placed before the Adjudicating Authority for approval, accepting any belated claim at this stage, will put paid to the efforts achieved so far by the Resolution Professional in completion of CIRP process. In IBC, where time-lines are well laid down, any indulgence shown by way of belated admittance of claim is likely to jeopardise the CIRP and set the clock back which certainly is not the intent and purpose of the IBC. Whether the Tripartite Agreement between the Appellant, Corporate Debtor and the borrowers/Homebuyers which has been validated by the Hon ble DRT by issue of DRCs provides enforceable rights in favour of the Appellant Bank? - HELD THAT - There is a need to take a close look at the terms of the Tripartite Agreement whereby the Appellant Bank sanctioned and released housing loans to some allottees /Homebuyers for purchase of flats in the project floated by the Corporate Debtors. There are substance in the contention of the Learned Counsel for the Respondent that mere permission to mortgage is of no relevance in the absence of not having registered a charge. Furthermore, we also agree that being merely in possession of enforceable rights under Tripartite Agreement is not enough. The claimant was required to act upon those rights and establish the claim before the Resolution Professional which having not been done, nothing remains in respect of the undecided claim. The Adjudicating Authority has committed no error in passing the Impugned Order. We find no cogent reason to interfere with the Impugned Order - The appeal is dismissed.
Issues Involved:
1. Whether the Appellant has shown due diligence in submitting the claim before the IRP/Resolution Professional and whether sufficient reasons/grounds exist to admit the claim at a time when the Resolution Plan has already been approved by the CoC and is pending consideration of the Adjudicating Authority. 2. Whether the Tripartite Agreement between the Appellant, Corporate Debtor, and the borrowers/Homebuyers, validated by the Hon'ble DRT by issue of DRCs, provides enforceable rights in favor of the Appellant Bank. Detailed Analysis: Issue 1: Due Diligence in Submitting the Claim The Appellant Bank submitted its claim on 31.12.2018 via email before the last date but without supporting documents. The supporting documents were later submitted through Google Drive on 07.01.2019. The IRP informed the Appellant on 03.02.2019 about the inability to access these documents and requested hard copies, reiterated on 05.02.2019. The Appellant Bank did not provide the hard copies and ceased communication from 05.02.2019 to 01.07.2019. The Resolution Professional also did not receive any claim from the Appellant Bank. The Tribunal noted that the Appellant Bank's failure to submit the required documents in hard copy despite requests and their lack of follow-up for nearly five months indicated a lack of due diligence. The IRP's conduct was deemed reasonable, and there was no evidence of the IRP/Resolution Professional acting to stall the Appellant's claim. The Tribunal emphasized the importance of adhering to the prescribed timelines in the IBC and concluded that the Appellant Bank's conduct was remiss. Given that the Resolution Plan had already been approved by the CoC with 87.57% voting share and was pending before the Adjudicating Authority, admitting the claim at this stage would jeopardize the CIRP process. The Tribunal referenced the Supreme Court judgment in "Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta and Ors: 2019 SCC Online SC 1478," which held that all claims must be submitted and decided by the Resolution Professional to avoid uncertainty for the prospective resolution applicant. Issue 2: Enforceable Rights under the Tripartite Agreement The Appellant Bank argued that the Homebuyers had subrogated their rights to the Appellant, supported by DRCs issued by the DRT. The Tripartite Agreement indicated that the title of the units would be submitted to the Appellant Bank once registered and executed. The Tribunal referenced its decision in "Axis Bank Ltd. Vs. Value Infracon India Pvt. Ltd. & Ors. in Company Appeal (AT)(Ins.) No. 582 of 2020," which held that Homebuyers should be considered as Financial Creditors, not the banks that provided loans to them. The Tribunal found that the Appellant Bank did not register a charge against the Corporate Debtor's property, and mere possession of enforceable rights under the Tripartite Agreement was insufficient without acting upon those rights and establishing the claim before the Resolution Professional. The presence of a Tripartite Agreement did not change the character of the amount borrowed by the Homebuyer. Conclusion: The Tribunal concluded that the Appellant Bank failed to exercise due diligence in submitting its claim and did not provide sufficient grounds for admitting the claim at this belated stage. The Tripartite Agreement did not provide enforceable rights in favor of the Appellant Bank without registering a charge and acting upon those rights. The appeal was dismissed, and the Impugned Order was upheld with no order as to costs.
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