9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (12) TMI 1150 - Tri - Insolvency and BankruptcyLiquidation of the Corporate Debtor - Financial debt or not - Resolution Professional rejected the claim stating that the applicant is not a Financial Creditor and that Term Loan Agreement dated 22.03.2017 executed between the applicant and the corporate debtor was novated by the Settlement Deed dated 04.09.2019 - Section 33 (2) of I B Code - HELD THAT - The pre-requisite for a debt to qualify as a financial debt is that there must be a disbursal of money against the consideration for time value of money. The Hon ble Supreme Court in Anuj Jain IRP for Jaypee Infratech Limited V. Axis Bank Limited 2020 (2) TMI 1259 - SUPREME COURT has affirmed the above contention by holding that transactions under Section 5(8) would be falling within the ambit of Financial Debt only if they carry the essential element of disbursal , and that too against the consideration for time value of money. The Hon ble Supreme Court in Pioneer Urban Land and Infrastructure Limited v. Union of India 2019 (8) TMI 532 - SUPREME COURT has held that for a debt to correspond to the definition of a Financial Debt under the Code, there must be disbursal which must be a disbursal of money and which must be against consideration for the time value of money. The Hon ble Supreme Court has conclusively affirmed that there must be actual disbursal of money for a debt to be a financial debt. It is clear that the applicant s claim falls under the preview of Financial Debt as defined under Section 5(8) of I B Code, 2016, which is disbursed against the consideration for the time value of money - Resolution Professional cannot reject a claim stating that financial debt of the applicant originating from the term loan agreement dated 22.03.2017 is merged with the amount settled under the Settlement Deed dated 04.09.2019 without classifying identity of financial debt. The merger of the financial debt and other multi claims emanating under different business transactions into a single settled amount between the parties are so complex making it impossible to cull out or identify the interfused financial debt from other claims or settled claims. The Resolution Professional cannot deny the claim of the applicant stating that a debt lost its character as a financial debt on the basis of amount settled under the Settlement Deed dated 04.09.2019. In the present case, the Interim Resolution Professional acted as an adjudicating authority and gone into the factual scenario between parties and determined their rights and liabilities. The task of the Interim Resolution Professional was to limit itself to confirm that the claims received by him are true and correct. Here, he failed to clear the contingency existed in the amount and to the best estimate of the amount of the claim based on the information available with him. Instead, the Interim Resolution Professional out-rightly rejected the claim of the applicant without verifying the claim. The application filed by the Interim Resolution Professional for Liquidation of the Corporate Debtor under Section 33 (2) of I B Code has been rejected - Application dismissed.
Issues Involved:
1. Rejection of claim verification order. 2. Admission of Form C and Form B claims. 3. Annulment of the resolution to liquidate the Corporate Debtor. 4. Interim order to halt liquidation proceedings. Issue-wise Detailed Analysis: 1. Rejection of Claim Verification Order: The applicant, BMW India Private Limited, filed for the rejection of the claim verification order dated 12.05.2021. The Resolution Professional (RP) rejected the claim on the grounds that the applicant is not a Financial Creditor of the Corporate Debtor. The RP argued that the term loan agreement dated 22.03.2017 was novated by the Settlement Deed dated 04.09.2019, thus altering the nature of the financial debt. The Tribunal found that the RP acted beyond the scope of verifying the truth and correctness of the documents and instead adjudicated the claim, which is not within the RP’s purview. 2. Admission of Form C and Form B Claims: The applicant sought the admission of Form C dated 07.05.2021 and Form B dated 16.05.2021. The RP rejected the Form C claim stating that the financial debt was merged with other claims under the Settlement Deed, making it impossible to identify the financial debt. The Tribunal noted that the RP’s role is limited to verifying claims and not adjudicating them. The Tribunal emphasized that the RP must verify whether the claims are true and correct and not delve into the factual scenario between parties. The Tribunal concluded that the applicant’s claim falls under the purview of Financial Debt as defined under Section 5(8) of the IBC, 2016, and should be admitted. 3. Annulment of the Resolution to Liquidate the Corporate Debtor: The applicant requested the annulment of the resolution passed by the Committee of Creditors (CoC) on 18.05.2021 to liquidate the Corporate Debtor. The Tribunal found that the formation of the CoC was null and void as the RP did not verify and admit the claims properly before assigning voting shares to creditors. Consequently, the decisions taken by the illegally constituted CoC, including the resolution to liquidate the Corporate Debtor, were deemed vitiated. 4. Interim Order to Halt Liquidation Proceedings: The applicant sought an interim order to halt the liquidation proceedings until the disposal of the present application. The Tribunal noted that the application filed by the RP for liquidation of the Corporate Debtor under Section 33(2) of the IBC was rejected, and a fresh IRP was appointed. The Tribunal directed the new IRP to reconstitute the CoC with the applicant included as a Financial Creditor and to take further steps for the Corporate Insolvency Resolution Process (CIRP). Findings and Conclusion: The Tribunal found that the RP acted beyond his scope by adjudicating the claims rather than verifying them. The Tribunal declared the applicant as a Financial Creditor and directed the new IRP to reconstitute the CoC and proceed with the CIRP. The Tribunal emphasized the importance of protecting the interests of creditors and adhering to the provisions of the IBC and its regulations. The application IA (IBC)/100/KOB/2021 was disposed of with the above directions. Dated: 18th November, 2021.
|
