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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 ..... The Applicant who has filed a counter claim before the Arbitral Tribunal is said to have a claim and is contingent upon adjudication by the Arbitral Tribunal and hence, such a claim is necessarily to be declared as contingent claim by the Resolution Professional in the information memorandum - Application allowed in part. - IA 1304/NCLT/MB-IV/2020 in CP (IB) No. 1712/NCLT/MB-IV/2019 - - - Dated:- 5-5-2021 - Rajesh Sharma , Member ( T ) And Suchitra Kanuparthi , Member ( J ) For the Appellant : Suchitra Valjee and Sharanya Shivarman i/b Manilal Kher Ambalal Co., Advocates For the Respondents : S. R. Jariwala, CA i/b Ami Jain, Advocate ORDER Suchitra Kanuparthi, Member (J) 1. This is an application being C.P. (IB) No. 1304/NCLT/MB-IV/2020 filed by Ultra Tech Cement Limited, the Applicant, under section 60(5) of Insolvency Bankruptcy Code, 2016 (I B Code) against Minita D. Raja, Resolution Professional, for rejection of claim vide email dated 20.11.2019 filed by the Applicant before the Respondent in respect of operational debt due and payable by the Corporate Debtor. 2. The brief submissions on behalf of the Applicant is as under: a) The admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial powers. In fact, even when the resolution professional is to make a determination under Regulation 35-A, he is only to apply to the adjudicating authority for appropriate relief based on the determination. 90. Unlike the liquidator, the resolution professional cannot act in a number of matters without the approval of the committee of creditors under Section 28 of the Code, which can, by a two-thirds majority, replace on resolution professional with another, in case they are unhappy with his performance. Thus, the resolution professional is really a facilitator of the resolution process, whose administrative functions are overseen by the committee if creditors and by the Adjudicating Authority. g) The Applicant further relied upon the Supreme Court Judgment dated 15.11.2019 in Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta Ors [Civil Appeal No. 8766-67/2019 and other petitions] as follows: 27. The detailed provisions that have been stated hereinabove make it clear that the resolution professional is a person who is not only to manage the affairs of the corporate debtor as a going concern from the stage of admission of an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) In response to the said public announcement inviting claim from all creditors of the corporate debtor, no claim was filed by the applicant in the prescribed form B for Operational Creditors at the relevant time. The last date for filing the claim was 07.11.2019 whereas the Applicant lodged its claim on 12.11.2019. d) The Applicants prayer seeking consideration of claim can not be entertained as same has been received/filed after expire of the time to receive such claim. e) The claim of the Applicant correlates with the counter claim filed by the Applicant in the pending Arbitration Proceedings. The Applicant vide their email dated 30.08.2019 requested the Arbitral Tribunal to keep the arbitral proceedings in abeyance till the completion of the CIRP of the Corporate Debtor. f) The amount claimed by the Applicant does not find place in the Books of Accounts of the Corporate Debtor. Further, there is no correspondence to show that the said amount has been acknowledged as debt by the Corporate Debtor, making it difficult to verify the claim. g) The Applicant filed his claim on 12.11.2019. The respondent had, on 20.11.2019, intimated the applicant as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court Judgment in Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta Ors. Supreme Court [Civil Appeal No. 8766-67/2019 and other petitions] ( Essar Case ) wherein the Supreme Court had observed as follows: Para 88. For the same reason, the impugned NCLAT judgment in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60(6) of the Code, also militates against the rationale of Section 31 of the Code. A successful resolution applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable Company Appeal (AT) (Insolvency) No. 319 of 2020 7 of 11 by a prospective resolution applicant who successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in Order that it may then take ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertinent to note that the question of the claim filed belatedly has never been raised by the Respondent. b) The Applicant submitted that the RP does not have Adjudicating Powers to admit or reject a claim, his/her job is confined to collecting and collating of claim and incorporation the same in the Information Memorandum. c) On one hand the Respondent mandates the claim of Applicant to be adjudicated upon by the Arbitrator and on such basis has declined to accept Applicant's claim and on other hand there is a continuing moratorium on the adjudication of any and all disputes pertaining to the Corporate Debtor including the concerned Arbitration Proceedings. d) As per section 3(6) of the code, a claim is a right to payment, whether or not such right is reduced to judgement, fixed, disputed, undisputed, legal, equitable, secured or unsecured. Thus, there is absolutely no cogent reasoning provided by the Respondent for not considering the claim of the Applicant. 5. The Written Submissions of the Applicant are based on the following grounds: a) A Bonafide claim by the operational Creditor cannot be rejected by a virtue of a dispute, especially prior to dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to admit the claim for notional value in order to ensure all present future claims accorded to him for protection of resolution plan and another resolution applicant is not faced with any unexpected claims. The Respondent performing and administrative role cannot exclude and entirely a legal claim. Therefore, non-admission of claim on the account of pending Arbitration Proceedings is in contradiction of IBC and ultra-virus of the powers conferred upon the Resolution Professional. c) Ld. Counsel for the Applicant also relied upon the judgment by the Hon'ble Supreme Court in Committee of Creditors (CoC) of Essar Steel India Limited Vs. Ateesh Kumar Gupta and anr., wherein the Hon'ble Supreme Court held that the successful Resolution Applicant cannot certainly be faced with undecided claim after Resolution Plan submitted by him which has been accepted as this amounts to an extra amount coming up for payment after the debts have been dealt by the Resolution Applicant and the Resolution Plan has been approved. This would through into uncertainty amount payable by prospective Resolution Applicant who successfully takes over the business of Corporate Debtor. d) Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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