9911796707
TMI Blog2021 (10) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... btor and the Respondent was appointed as the Interim Resolution Professional who was afterwards confirmed as the Resolution Professional on 06.05.2021 in the first COC meeting. The RP on 07.04.2021, made a Public Announcement inviting claims from all the creditors and stakeholders. A copy of order dated 07.04.2021 passed by this Hon'ble Tribunal in C.P. (I.B.)/7/GB/2021 under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "the Code"), is annexed herewith and marked as ANNEXURE A (Page no. 12 to 26). 3. That the Operational Creditor/Applicant submitted its proof of claim on 11.05.2021 in FORM D as an Operational Creditor by email and further sent the hard copies of the claim on 31.05.2021 towards its Operational Debt under Regulation 9 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 to the Respondent. That the total claim of the Operational Creditor is of Rs. 63,22,971.00 (Rupees Sixty-Three Lakh Twenty-Two Thousand Nine Hundred Seventy-One Only) A copy of the FORM D dated 11.05.2021 is annexed herewith d marked as ANNEXURE B (Page No. 27 to 35). 4. That the above-mentioned claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A copy of the email dated 10.06.2021 sent by the RP to the Applicant is annexed herewith and marked as ANNEXURE D (Page No. 59 to 60). 9. That the RP has neither verified the documents submitted by the Operational Creditor nor the records of Corporate Debtor before rejecting the claim. 10. It is submitted that the claim of the Applicant is an operational debt in terms of the Code. In view of the above, it is submitted that Section 5 (21) defines a "operational debt". The relevant portion of 5 (21) of the Code states as under: "(21) Operational Debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the 5[payment] of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority;" 11. That the RP holds a fiduciary relationship with the Corporate Debtor and the Code provides for certain duties and obligations which the RP must adhere to scrupulously to ensure a fair CIRP for every stakeholder related to the Corporate Debtor and the same is evident from section 18 of the Code which lays down the duties of IRP. The relevant extract of Section 18 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fessional or the Resolution Professional, as the case may be, shall verify every claim, as on the Insolvency Commencement date, within seven days from the last date of the receipt of the claims, and thereupon maintain a list of creditors containing names of creditors along with the amount claimed by them, the amount of their claims admitted and the security interest, if any, in respect of such claims, and update it..." 15. Further, the duty of the RP extends to only the collation of all the claims submitted to it. The RP does not have the jurisdiction to adjudicate upon a claim. In this regard, the Hon'ble Supreme Court of India in Swiss Ribbons Pvt Ltd and Anr. vs. Union of India (2019) 4 SCC 17, has laid down that a Resolution Professional has no adjudicatory powers but must receive and collate all the claims submitted by creditors to him. The role of a Resolution Professional is to present the true and fair picture of the Corporate Debtor and to act as a facilitator between the Corporate Debtor and its numerous stakeholders including the Financial Creditors. In this light, the Hon'ble Supreme Court held as follows: "... It is clear from a reading of the Code as well as the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Matter is reserved for order." 21. In accordance with the Order dated 03.09.2021, the Applicant filed its written submissions, wherein it made the following submissions: i. The Applicant has preferred the present application being aggrieved by the partial rejection of its claim dated 11.05.2021 as an Operational Creditor. ii. That the present claim is by the Suspended Managing Director of the Corporate Debtor against Non-payment of Salary of the Applicant by the Corporate Debtor. The Applicant has been at different roles in the Corporate Debtor from 05.10.2009 till 07.05.2021. It is submitted that the Applicant's salary dues have not been paid from 05.10.2009. iii. That the present operational debt of the Applicant can be established from the documents below: Annexure No. Documents Page No. in the Main Application C Minutes of Board Meetings 1. 10th BM dated 24.01.2011 - Applicant is appointed as the Managing Director. - Pg. 31 2. 16th BM dated 25.10.2011- "ITEM NO. 7: FIXATION OF DIRECTORS' REMUNERATION - The Chairmen informed the Board that it is necessary to fix the Directors' remuneration for the year ending on 31.03.2012. It was suggested that an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -One Only). A copy of the computation of the Operational Debt in accordance with the Minutes of the Board Meetings is annexed herewith for the perusal of this Hon'ble Tribunal. v. That the RP has neither verified the documents submitted by the Operational Creditor nor the records of the Corporate Debtor before rejecting his claim. vi. Therefore, it is prayed from this Hon'ble Tribunal to admit the claim of the Operational Creditor and direct the RP to admit the entire claim of Rs. 63,22,971.00 (Rupees Sixty-Three Lakhs Twenty-Two Thousand Nine Hundred Seventy-One Only) of the Applicant as an Operational Debt. 22. In accordance with the liberty given by this Tribunal, the Respondent/RP filed his Rejoinder Reply in Affidavit, wherein he made the following submissions: i. That the Respondent was appointed as Interim Resolution Professional vide Hon'ble NCLT order dated 07.04.2021 in C.P.(I.B.)/7/GB/2021 by this Tribunal and confirmed as Resolution Professional by the COC at their First COC meeting held on 05.05.2021. ii. That as per Section 15 of IBC, 2016 and Regulation 6 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulation, 2016, the IRP p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h June, 2021 and placed before the COC in the 2nd COC meeting held on 14th June, 2021. The COC members noted the same. Minutes of COC attached and marked as ANNEXURE-F. viii. That despite sufficient time given to the claimant to prove his claim, he has failed to provide any evidence that could substantiate the unadmitted due and thereby has filed the present I.A. on 04.08.2021. Thus, lots of water had flown under the bridge since the date of issue of public notice (on 10.04.2021) and the extended period of ninety days as provided under Regulation 12(2) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. ix. It is submitted that to substantiate his claim, the Claimant has submitted only the alleged Board Resolutions of CD which was participated by the claimant and his sibling Mr. Rishikesh Dutta only. It is submitted that Mr. Rishikesh Dutta has also submitted his claim on account of director salary a sum of Rs. 63,22,971.00 (Rupees Sixty-Three Lakhs Twenty-Two Thousand Nine Hundred Seventy-One Only) claiming the same on the basis of Board Resolution which is in contravention of audited financial statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 which read as under: - "The interim resolution professional or the resolution professional, as the case may be shall verify claim, as on the insolvency commencement date, within seven days from the date of receipt of claims, and thereupon maintain a list of creditors containing names of creditors along with the amount claimed by them, the amount of their claim admitted and security interest, if any, in respect of claims, and update." As per Regulation 13(2) (d) the IRP is required to file list of claims to the adjudicating authority, the RP filed the list of claims to the adjudication authority within 7 days of receipt of the aforesaid claim and also to the IBBI on 11.06.2021. xv. It is submitted that as per regulation 14 (1) of Insolvency Resolution Regulations 2016, which read as under: - "Where the amount claimed by a creditor is not precise due to any contingency or other reason, the interim resolution professional or the resolution professional as the case may be, shall make best estimate of the amount of claim based on the information available with him." In the instant matter since there is complete contradiction of the claim amount as submitted by the suspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Petitioner which had also been disposed of. iv. Now the Applicant has filed this petition for non acceptance of his entire claim as OC by the RP for the salary payable to him as Suspended MD of the CD for the period 2009 to 2021 to the extent of Rs. 63,22,971.00 (Rupees Sixty-Three Lakhs Twenty-Two Thousand Nine Hundred Seventy-One Only). This claim has been made by the applicant mainly on the basis of Board Resolutions. The above claim was never been accounted for in the books of accounts of the CD It is not reflected in the Audited Balance Sheets of the CD except to the extent of Rs. 7,20,000.00 (Rupees Seven Lakhs Twenty Thousand Only). v. Balance Sheet is the sacrosanct document of the Company and the same has been prepared by the CD which is signed by the Applicant himself as MD. There is no reflection of any such salary amount payable to the Applicant for earlier years from the CD. vi. The learned RP is duty bound to scrutinise the claims on the basis of Audited Balance Sheet of the CD which has been prepared by the Company and signed by the the Applicant here as the then Managing Director of the CD. The RP has no role in it. Sufficient opportunities wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
