9911796707
TMI Blog2019 (2) TMI 1639X X X X Extracts X X X X X X X X Extracts X X X X ..... solution Professional has no jurisdiction to decide the claim of one or other creditor, including Financial Creditor , Operational Creditor , Secured Creditor or unsecured Creditor . Referring to sub-section (6) of Section 60 of the I B Code , this Appellate Tribunal further observed that after completion of the period of moratorium, a suit or application can be filed against the Corporate Debtor . Notwithstanding the order passed under Section 31 of the I B Code (any existing law), it is open to a person to file a suit or an application against the corporate debtor after completion of the period of moratorium. In the present case, it is informed that the resolution plan has already been approved by the Committee of Creditors and the Resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasad Gempex' filed a claim as 'Financial Creditor'. The 'Resolution Professional' rejected the claim. 'M/s. Prasad Gempex' thereafter claimed to be an 'Operational Creditor' on suggestion of the 'Resolution Professional' but the same has also been rejected. 3. According to the appellant 'M/s. Prasad Gempex' had filed 'Expression of Interest' before the 'Resolution Professional' but it was not taken care by the 'Committee of Creditors'. In this background, the appellant filed an application before the Adjudicating Authority (National Company Law Tribunal), Single Bench, Chennai and by impugned order dated 22nd May, 2018, the Adjudicating Authority rejected the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (AT) (Insolvency) No. 229 of 2018 etc.' The Appellate Tribunal by its judgment dated 30th January, 2019 held that 'Resolution Professional has no jurisdiction to decide the claim of one or other creditor, including 'Financial Creditor', 'Operational Creditor', 'Secured Creditor' or 'unsecured Creditor'. Referring to sub-section (6) of Section 60 of the 'I&B Code', this Appellate Tribunal further observed that after completion of the period of moratorium, a suit or application can be filed against the 'Corporate Debtor'. Relevant portion of Section 60 is quoted below:- "60. (1) The Adjudicating Authority, in relation to insolvency resolution and liquidation for corporate persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atorium. 8. The power of 'Resolution Professional' also fell for consideration before the Hon'ble Supreme Court in 'Swiss Ribbons Pvt. Ltd. & Anr. vs. Union of India & Ors. - Writ Petition (Civil) No. 99 of 2018'. In the said judgment dated 25th January, 2019, the Hon'ble Supreme Court held that 'Resolution Professional' has no adjudicatory power. The 'Resolution Professional' has to vet and verify the claims made and ultimately determine the amount of each claim. As opposed to this, the 'Liquidator' in the Liquidation proceedings under the I&B Code has to consolidate and verify the claims and either admit or reject such claims under Sections 38 to 40 of the Code. 9. In the present case, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te court of law or may file appropriate application against the 'corporate debtor' namely 'M/s. Star Agro Marine Exports Pvt. Ltd.', if the 'resolution plan' is approved and do not take proper care of the applicant. In case the 'resolution plan' is not approved and order of 'liquidation' is passed in respect of 'M/s. Star Agro Marine Exports Pvt. Ltd.', in such case, it will be open to the appellant 'M/s. Prasad Gempex' to file claim before the 'Liquidator' in accordance with the provisions as referred to above and the 'Liquidator' will decide the claim under Section 40 of the I&B Code. 13. We may observe that we have not expressed any opinion with regard to the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
