9911796707
TMI Blog2021 (1) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... st the applicant herein declaring moratorium under Section 14 of IBC, 2016 and appointing an Interim Resolution Professional (IRP) for collating the claims against the applicant. 3. During the CIRP period, the respondents did not file its claim with the IRP.Thereafter the IRP was replaced by the Resolution Professional (RP) and the RP floated the Expression of Interest inviting potential Resolution Applicant to submit their Resolution Plans. A Resolution Plan placed by Resolution Applicant - BRS Ventures Investment Ltd. was duly accepted by the majority votes in the 13th meeting of the Committee of Creditors held on 10.08.2018 and the said Plan was approved by this Bench by an Order passed on 20.09.2018. 4. In the approved Resolution Plan, it is clearly stated that barring aside the claims admitted and forming part of the Resolution Plan any other claim and / or demand prior to the effective date shall stand extinguished. On 21.08.2019 the applicant sent a letter to the respondent intimating regarding the commencement of CIRP against the applicant and subsequent approval of Resolution Plan of BRS Ventures Investment Ltd. by this Bench, wherein the successful Resolution Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20, the learned Counsel appearing for the Respondent side was directed to file their reply, if any, within 15 days with a copy to the petitioner / Resolution Applicant. On the other hand, the petitioner / applicant was also directed to file reply if any, within 7 days from the date of receipt of the reply from the respondent. The Petitioner was also directed to file an affidavit within 15 days of this order stating that the Petitioner has been paying all current statutory dues up to date especially EPF, Income Tax, GST etc. without any delay. 7. In response to the above order of this Bench, the respondent has filed their affidavit-in-reply on 17.11.2020 stating inter alia as under: (a) That during the CIRP period, neither the IRP nor the RP nor any representative of the CD has communicated the respondent regarding initiation of CIRP by this Adjudicating Authority and hence, the respondent was not aware of this fact. After completion of CIRP and approval of the Resolution Plan, the RP communicated the respondent for extinguishment of the revenue claims due to the Government and that this contention is admitted by the applicant at page 11 of the application. (b) It is submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a Company i.e. Corporate Debtor, goods were cleared and question of writing off the duty is not possible. (h) The respondent has further submitted that for solution of the issues of the instant application, the Applicant shall proceed and avail and put forward for settling the disputes of the cases before the appropriate authority by participating in joint meeting for negotiation and settlement of the claims upon order of this Bench. 8. Further, the Applicant in their rejoinder filed on 17.12.2020 has stated that save and except what are the matters of records, all allegations to the contrary are denied. After the order of moratorium dated 26.10.2017 of this Bench, necessary paper publications were made as per the provisions of the IBC for all the stakeholders asking them to submit their claims in respect to the CD being Assam Company India Ltd. to the Resolution Professional. As per the paper publications many claims were received by the Resolution Professional from the stakeholders but the Resolution Professional did not receive any claim from the Respondent. Therefore, it is denied that the Interim Resolution Professional or the Resolution Professional or any of its repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of administration and justice, it has been the rule of law that any person acting as Officer of any Court or Tribunal should comply with the rule of audi alterum pattern as alleged. It is further denied that it was for the first time that the Resolution Professional has intimated about the status of CIRP of the CD vide letter dated 21.08.2019. The order of approval of Resolution Plan was passed on 20.09.2918 by this Bench and the same was communicated to the Respondent vide letter dated 21.08.2-019. It is further submitted that the Respondent filed its claim vide its application dated 10.09.2020 and the same cannot be entertained by this Tribunal since the Respondent filed its claim after CIRP proceedings have been concluded. There is no proper justification of the delay as mentioned by the Respondent. It is also submitted that upon filing of the application by the applicant under Section 60 (5) of IBC, the Respondent has filed its claim to the Resolution Professional at a stage when the CIRP has already been concluded and that such application filed by the Respondent cannot be entertained in any manner whatsoever. It is denied that unless the claim of the Respondent is taken up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil Appeal No.8766-67/2019 and other petitions [Judgment dated 15th November, 2019] while setting aside the judgment dated 4th July, 2019 of NCLAT and upholding the constitutional validity of the Insolvency and Bankruptcy Code (Amendment) Act, 2019 has settled several issues and made important rulings including the following as under: "a. Ultimately it is the commercial wisdom of the requisite majority of the CoC that must prevail on the facts of any given case, which include distribution of assets. It is, therefore, not possible that the AA and consequently the NCLAT would be vested with the discretion that it vested in the CoC. b. The CoC does not act in any fiduciary capacity to any group of creditors. On the contrary, it is to take a business decision based upon ground realities by a majority, which then binds all stakeholders, including dissenting creditors. c. The NCLAT judgment which substitutes its wisdom for the commercial wisdom of the CoC and which also directs the admission of a number of claims which was done by the resolution applicant, without prejudice to its right to appeal against the aforesaid judgment, must therefore be set aside. d. A successful Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
