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TMI Blog2021 (7) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit was contested and ultimately decreed in favour of the OC. The CD has not so far preferred any appeal against the decree and thus it became an executable decree in till effect. Despite admission of liability, the CD did not reveal the erstwhile proceedings initiated under SICA, 1985 to the knowledge and notice of the OC. Be that as it may, the proceedings started in the year 2012, under SICA became abated when IBC Act, 2016 came into force. Taking cue the Eighth Schedule of the IB Code, the process of insolvency stood referred to this Tribunal under IB Code on motion of Financial Creditor/IDBI. The said proceeding was registered as C.P. (IB) No. 2/GB/2018. Sri Bijay Murmuria was initially appointed as IRP. This CD was unaware of such appointment of IRP at the relevant time since public announcement circulated in local dailies at Guwahati whereas the OC conducts business in southern part of India in Kerala. On coming to know about the IRP at a later stage, the OC preferred a claim before IRP on 26.11.2018. However, the same was rejected by the IRP on the ground that it was submitted beyond 90 days after resolution process date and hence not entertainable Under 12(2) of IB Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Accrued Interest @6% Till Form 3 Demand Notice, Cost. Etc. granted thereon by decree in the Original Suit No. 47/2014 of Sub Court, Kannur and the same is due from 01.04.2013. The said amount is claimed to be in default and the date of default is 01.04.2013. The working for computation of the amount and date of default in tabular form is attached with the Application. The same is also given hereunder: Sr. No. Particulars Amount 1. Credit balance confirmation letter No.KIL/TN/GWP/13-14/094 dated 02.12.2013 as per the books of accounts of Kitply as on 31.03.2013. 21,92,013.00 2. Interest on Rs. 21.92.103.00 from 01.04.2013 to 05.11.2020 @6% P.A. for 2776 days 9,99,740.00 3. Cost allowed as per decree in O.S.47/2013 of Sub Court, Kannur 3,96,855.00 Grant Total 35,88,608.00 6. In support of the claim/operational debt the Applicant has referred to and or attached the following provisions of law/documents with the Application: i) Decree in the Original Suit No. 47/2014 of Sub Court, Kannur ii) Indian Contract Act, 1872 iii) Invoices and credit confirmation letter KAIL/TN/GWP/13-14/094 dated 02.12.2013 by Kitply. iv) Statement of Bank Account whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lan is approved by the Hon'ble Adjudicating Authority under Section 31 of the Insolvency & Bankruptcy Code (hereinafter 'I & B Code') in respect of the corporate debtor, it becomes binding on all the stakeholders (in this case the Operational Creditor/Petitioner, hereinafter 'OC. The Hon'ble Supreme Court in Para 95 of the said judgment held as under: "..... That once a resolution plan is duly approved by the Adjudicating Authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan....." Prior to Ghanashyam (supra), the Hon'ble Supreme Court in case titled as 'Committee of Creditors of Essar Steel India Limited vs. Satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainable and an abuse of the process and thus deserves rejection with costs. (iii) In any event the OC neither challenged the order dated 10.05.2019 passed by this Hon'ble Adjudicating Authority rejecting its application being I.A. No. 21 of 2019 filed by the OC in C.P. (IB) No. 02/GB/2018 nor it challenged the approved Resolution Plan dated 07.12.2018. In fact it is the own admission of the OC in the said application being I.A. No. 21 of 2019 that it failed to file its proof of claim before the IRP within the stipulated time. It is humbly submitted that OC itself has not been vigilant for its rights and a legal maxim Vigilantibus Non Dormientibus Jura Subveniunt i.e. the law assists only those who are vigilant, and not those who sleep over their rights, is perfectly applicable on the facts of the present matter. Therefore, in view of extinguishment of claim the Applicant can neither pursue this Application under Section 9 of the I & B Code nor can pursue execution of such alleged decree now. IV. THE CLAIM FILED BY THE OC AFTER THE STIPULATED PERIOD OF 90 DAYS WAS RIGHTLY REJECTED BY THE RESOLUTION PROFESSIONAL OF THE CORPORATE DEBTOR AND UPHELD BY THIS HON'BLE AD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper: Financial Express" and also in vernacular Newspaper "Amar Asom" mentioning the last date of submission of claims by the Creditors as on 16.05.2018. (3) The Applicant OC here filed the claim on 20.11.2018 through e-mail. (4) The IRP/RP rejected the claim, as it has been submitted more than ninety days after the commencement of Insolvency Resolution Process date and communicated the decision to the Applicant here on 26.11.2018. (5) The Resolution Plan has been approved by this Bench on 07.12.2018. (6) The Applicant had fled an IA No. 21 of 2019 with a prayer that the order of rejection of its claim by the RP to set aside as it was not aware about the CIRP of the CD and it came to know about the CIRP of the CD from the internet only after second week of November, 2018 and thereafter only it had filed its claim. The prayer made in the said IA was rejected by this Bench. (7) The Applicant has filed this petition under Section 9 of I & B Code after 2 years of the Resolution Plan approved and Plan is under implementation. (8) Recently the Hon'ble Supreme Court in the case titled as "Ghanashyam Mishra and Sons Private Limited through the Authorised Signatory Vs. Edel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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