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TMI Blog2021 (5) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... onal, accordingly the moratorium was declared in accordance with the section 14 of I&B Code, 2016. b) Thereafter, the Respondent invited the claim from Operational Creditor and Financial Creditor of the Corporate Debtor in accordance with the its duties under section 18 of the code. c) The Applicant herein after file its claim of Rs. 35,58,96,601/- (Rupees thirty-five crore fifty-eight lakh ninety-six thousand six hundred one only) in prescribed form before the Respondent on 24.10.2019 along with all relevant annexures inter alia bills, invoices, bank statements and details as requested by the Respondent. The aforementioned documents set out the precise claim, as to how it became due and payable. The proof of the claim submitted by the Applicant is attached at p 12 as Annexure 'A' of the IA. d) The Applicant further submitted that the Corporate Debtor initiated arbitration proceedings against the Applicant and the Applicant has filed cross claim in the pending matter, which was stayed pursuant to the operation of Moratorium in view of the admission order. Therefore to ensure that any prospective Resolution Applicant in the Resolution Process does not face unforeseen c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd convene meetings of the Committee of Creditors, so that they may decide upon resolution plans that are submitted in accordance with the detailed information given to resolution applicants by the resolution professional. Another very important function of the resolution professional is to collect, collate and finally admit claims of all creditors, which must then be examined for payment, in full or in part or not at all, by the resolution applicant and be finally negotiated and 3 Under Regulation 2(ha), Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016-(ha)- "evaluation matrix" means such parameters to be applied and the manner of applying such parameters, as approved by the committee, for consideration of resolution plans for its approval decided by the Committee of Creditors. In fact, in Arcelor Mital India (supra), this Court referred to the role of the resolution professional under the Code and the aforesaid Regulations, making it clear that the said role is not adjudicatory but administrative." h) The Applicant relied upon another Judgment of NCLAT in Mr. S. Rajendaran, Resolution Professional of PRC Internatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts submitted by you and upon verification it is observed by the Resolution professional that the amount claimed is disputed & is pending for adjudication with Hon'ble Arbitral Tribunal & District Court. In view of this fact, your claim can not be accepted at this moment pending adjudication." h) Infact the facts of the pending Arbitration matter goes to show that the Corporate Debtor has received a service order from the Applicant for construction Limestone Crusher at mine area of Vikram Cement Works, Neemuch. Due to construction dispute between the parties, the Corporate Debtor has filed Arbitration Proceedings against the Applicant and claimed Rs. 52,40,93,628/- (Rupees fifty-two crore forty lakh ninety-three thousand six hundred twenty-eight only) against which the Applicant has filed its counterclaim of Rs. 35,87,06,000/- (Rupees thirty-five crore eighty-seven lakh six thousand only). The Applicant has also filed a claim to the Respondent under CIRP amounting Rs. 35,85,96,601/- (Rupees thirty-five crore eighty-five lakh ninety-six thousand six hundred one only), which was not accepted by the Respondent. i) The Respondent submitted that there is no dispute pending before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side on this count." k) The Respondent further relied upon the Judgment of NCLAT in State of Haryana V/s Uttam Strips, wherein it was observed that: "13. That insofar any contingent liabilities or claims are concerned, or any creditors who failed to file any claim during CIRP, the same were duly accounted for in the Resolution Plan of the corporate debtor and were given a NIL value. It is to be noted that the liquidation value of the Appellant's claim, in any case, would have been NIL. The Successful Resolution Applicant is to be provided with a company free from past liabilities. It has been rightly understood that a Successful Resolution Applicant cannot be saddled with past liabilities indefinitely. Such an act will make it impossible for the Successful Resolution Applicant to run the business of the Corporate Debtor effectively. In fact, saddling a Resolution Applicant with past claims will defeat the entire purpose and mechanism set out under the I&B Code, mainly when all claims have been appropriately dealt under the Resolution Plan itself." "14. Relevant clauses of the approved Resolution Plan is as under: "iii. The Operational Creditors shall not have any righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows: "UTCL had lodged the claim with the RP as operational creditor for Rs. 35,58,96,601/-. The RP is of the opinion that the amounts claimed by UTCL were neither appearing in the books of the Corporate Debtor nor any correspondence issued by the Corporate Debtor has been provided by UTCL, whereby the claims of UTCL have been acknowledged by the Corporate Debtor. Hence, from the perusal of the records of the Corporate Debtor, there is no means of verifying claim of UTCL. Furthermore, on a bare perusal of the claim filed by the UTCL, it was clear that the same coincided with counter-claims filed before the Learned Arbitral Tribunal." c) Without prejudice to the proceeding in question, the Applicant entitled to in award in terms of counter claim before the Arbitral Tribunal. d) Even otherwise, a disputed claim ought to have been admitted by the Resolution Profession and notional value ought to have ascribed to the same submit to subject to the determination of amount before the Arbitral Tribunal. e) There has been no delay in filing claim before the Resolution Professional. f) Non-admission of claim will cost prejudice to the Applicant. Findings/Conclusion: 6. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounted for its Resolution Plan of the Corporate Debtor and will be given a NIL value. The successful Resolution Applicant is to be provided with the Company free from past liabilities. The Resolution Applicant cannot be saddled with past liabilities indefinitely. e) Ld. Counsel for the Applicant also relied upon the judgment of the Hon'ble High Court in the matter of Tata Steel Bsl Limited Vs. Varsha W/O Ajay Maheshwari reported in (2019) 3 AIR Bombay (R) 351, wherein Hon'ble High Court considered the scenario, where the Operational Creditor therein sought to pursue a suit after the moratorium ceased to remain in force. The Operational Creditors claim was admitted for a notional value in the Resolution Plan. Acknowledging the admission of a disputed claim, The Hon'ble High Court of Bombay stated as follows: 'the sub judice claims like that of Respondent no. 1 operational creditor have been taken into consideration under the resolution plan and since the amount due is yet to be finalized or crystallized, it has been shown as an admitted amount of INR 1, subject to determination of the amount upon finalization of the proceedings before the Civil Court. It is b ..... 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