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TMI Blog2020 (10) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... aim in terms of the sub-section (6) of Section 60 before the appropriate court of law or may file appropriate application against the corporate debtor if the resolution plan is approved and do not take proper care of the applicant - application disposed off. - CA No. 212/2019 in CP (IB) No. 7/Chd/Hry/2018 - - - Dated:- 27-1-2020 - Ajay Kumar Vatsavayi , Member ( J ) and Pradeep R. Sethi , Member ( T ) For the Appellant : J.S. Brar and Sumer Singh Brar, Advocates For the Respondents : Rohit Khanna and Raghav Kapoor, Advocates ORDER CA No. 212/2019 Ajay Kumar Vatsavayi, Member (J) 1. The instant application has been filed under Section 60(5)(b) of the Insolvency and Bankruptcy Code, 2016 (Code) against the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicants in its meeting held on 13.11.2019. In pursuance of the same, the RP has filed CA No. 1192/2019 seeking approval of this Adjudicating Authority for the said plan and the said CA is pending for consideration as on today. 4. Further with regard to the disputes between the corporate debtor and the applicant in the instant CA, in connection with the same MOA, the corporate debtor has invoked the arbitration proceedings for recovery of claims to the tune of ₹ 202,43,84,008/- from the applicant before the Three Member Arbitration Tribunal even before the CP was admitted and the said Arbitration is pending. The RP rejected the claim of the applicant by stating that the record of the corporate debtor does not support the claim of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debtor, no liability towards applicant was shown and RP acted accordingly. Hence, Navneet Kumar Gupta (supra), is not of any help to the applicant's case. 9. The Hon'ble National Company Law Appellate Tribunal (NCLAT), in M/s. Prasad Gempex Vs. Star Agro Marine Exports Pvt. Ltd. Ors., Company Appeal (AT) (Insolvency) No. 291 of 2018 dated 01.02.2019, after considering the decision of the Hon'ble Supreme Court of India in Swiss Ribbbons (supra), in almost identical circumstances, decided the same issue, as under:- 2. The appellant 'M/s. Prasad Gempex' filed a claim as 'Financial Creditor'. The 'Resolution Professional' rejected the claim. 'M/s. Prasad Gempex' thereafter claimed to be an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution 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 is informed that the 'resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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. 10. In the instant CA also the COC has already approved a resolution plan and that the CA filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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