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TMI Blog2018 (9) TMI 1611X X X X Extracts X X X X X X X X Extracts X X X X ..... l punishment for the Officers of the Corporate Debtor, who are in default but section 58A of the Companies Act, 1956 or even the provisions of sections 73 to 76 of the Companies Act, 2013, do not prohibit the return of the loans/advances taken from the Applicants by the Corporate Debtor. The members of the CoCs cannot dispute the claim of the Applicants in any manner as there is no provisions in the I&B Code, 2016, empowering the CoCs to decide the claim of the co-creditors. The Corporate Debtor or Resolution Professional cannot take the advantage of its/his own wrongs. Miscellaneous Application is allowed and the claim of the Applicants stands admitted to the tune of ₹ 1,50,94,000/-; the representative of the Applicants is permitted to attend the CoCs and exercise rights attached thereto. Therefore, the Resolution Professional is directed to enter the names of the Applicants in the list of the Financial Creditors, allow their representative to participate in the CoC and exercise the right attached thereto without making any delay, and file the status report before the Registry through an Affidavit within 3 days from the date of pronouncement of this Order. - MA/115/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cheques to the Applicants and subsequently paid interest through RTGS on 17.10.2015 to the Finance Agent and the Finance Agent in turn had disburse the sums to the Applicants. Thereafter, the Corporate Debtor had failed to pay neither the principal nor the interest. 4. The Respondent Nos. 3 and 4 has filed an Application under Section 7 of the I B Code, 2017 for initiation of CIRP. This Authority vide its Order dated 04.09.2017 admitted the application and the 2nd Respondent here was appointed as IRP. 5. It is averred that pursuant to the Order dated 04.09.2017, the 2nd Respondent herein has made a public announcement of the initiation of CIRP of the 1st Respondent and had invited the Operational Creditors, Financial Creditors and Workmen of the 1st Respondent to present their claims on or before 19.09.2017 before him. 6. It is stated that consequent upon the public announcement dated 05.09.2017 made by the 2nd Respondent, the Applicants herein had submitted their claim forms electronically along with all the documents in their possession as per the provisions of the Insolvency and Bankruptcy (Insolvency Resolution Proses for Corporate Persons) Regulations, 2016, to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 2nd Respondent herein has sent an e- mail communication dated 13.05.2018 rejecting the claims on the following reasons:- (a) Balance sheet as on 31.03.2015 of the CD do not show any balance outstanding as loans/advances payable to the claimants. (b) Demand Promissory Notes-Expired and no attempts have been made to renew the same. (c) No Board Resolution of the CD obtained and they do not contain your borrowings/loans etc., (d) In the DPN it is shown that apart from CD some other individuals too have signed the same for which no proper explanations are furnished to us. (e) CoC members strongly objected your inclusion of your claims as FC in the CD and due to the above reasons they found that your claims are not substantiated. 11. It is stated that if the 1st Respondent Company has not maintained its books of account properly as per the provisions of the Companies Act, the Applicants cannot be held hostage for the same. The 1st Respondent Company has last paid interest on 17.10.2015 for the loan received by them, and therefore, the reasons that the Promissory Notes have expired is baseless. It is further stated that the Respondent Nos. 2 to 5 cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017, whereas, the Financial Creditors has preferred their claim only after 5 months of CIRP period, and it is necessary to ensure that no claimant is able to mulct the Corporate Debtor by having an excessive claim. 16. It is stated by the Resolution Professional that the Applicants have not complied with section 58A of the Companies Act, 1956 and when the Resolution Professional has raised a query in this regard, it was replied by the Applicants that the advances done by them were in the nature of unsecured loans and therefore, Section 58A of the Companies Act, 1956, does not arise and it was for the Corporate Debtor to comply with the same and not the claimants. 17. It is stated that the claims were subjected to the verification, review and modification as per Regulation 14(2) of the IBBI (CIRP) Regulations 2016 as and when information is received, and therefore, on further examination, it was found that no entries were made in the books of account of the Company, either as unsecured loans/short term or long term or financial liabilities, and the said amount was also not found under the accounting head in the balance sheet of the Corporate Debtor, and furthermore it was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng adjudication in terms of IBBI (CIRP) Regulations, 2016. It is further averred that the Applicants have admitted in the Application that although Promissory Notes are not renewed yet it got validity since Corporate Debtor had paid interest on 17.10.2015 which enables the Applicants to make claim against the Corporate Debtor, and therefore, it is needless to mention that the Applicants have to independently establish their claim before the Civil Court based on the alleged Promissory Note executed by the Corporate Debtor. Therefore, the Respondent Nos. 3 to 5 have prayed to reject the Application as in fructuous. 22. In the Counter filed by the 6th Respondent it has been stated that the allegation that the 6th Respondent has violated the provisions of the Companies Act, 2013, has been denied as baseless and stated that he has been discharging his duties diligently and in full compliance of law without any violations. The Books of Account of the Corporate Debtor in the year 2014-2015 reflected the debt owed by it to the Applicants, and the same entry was removed in the subsequent year as the Corporate Debtor is stated to have paid off the debt, and it was also informed by the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has been submitted by the Counsel for the RP that as reflects from para 5 of the Memo filed, the claims of ₹ 1,50,94,000/- have been admitted. In the circumstances, the Applicants are directed to send a duly authorised representative to the CoC. The RP is directed to issue notice to the duly authorised representative of the Applicants for attending the meeting of the CoC. Accordingly, CA/98/2018 stands disposed of . 27. However, on 13.05.2018, the claim of the Applicants has been rejected by the Resolution Professional stating the fact that the balance sheet as on 31.03.2015 of the Corporate Debtor does not show any balance outstanding as loans/advances paid by the claimants; Demand Promissory Notes have expired; no Board Resolution of the Corporate Debtor obtained and the CoC members strongly objected to their inclusion. The Applicants have filed the present MA/115/2018 with the prayers as recorded under para 2 hereinabove. 28. It has been placed on record by the Applicants that they have already obtained certificates from bank as proofs of advancing loans/advances made to the Corporate Debtor. All the Bank Certificates are placed in the typed set filed by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the same shall not render the transactions as null and void. Because, the non-compliance of the provisions of the Companies Act and the relevant Rules entail punishment for the Officers of the Corporate Debtor, who are in default but section 58A of the Companies Act, 1956 or even the provisions of sections 73 to 76 of the Companies Act, 2013, do not prohibit the return of the loans/advances taken from the Applicants by the Corporate Debtor. 32. Moreover, the members of the CoCs cannot dispute the claim of the Applicants in any manner as there is no provisions in the I B Code, 2016, empowering the CoCs to decide the claim of the co-creditors. The Corporate Debtor or Resolution Professional cannot take the advantage of its/his own wrongs. As it is settled proposition of law that no party can take undue advantage of its/his own wrong, this proposition of law has been laid down by Hon ble Supreme Court of India in catena of judgmnts by relying upon the Latin maxim: Commodum Ex Injuria Sua Nemo Habere Debet and in one of the leading cases titled Kusheshwar Prasad Singh v. State of Bihar [Civil Appeal No. 7351 of 2000, dated 19-3-2007], the Hon ble Supreme Court has held that, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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