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TMI Blog2021 (2) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: (1) Axis Bank Limited (hereinafter referred as "Applicant") is a scheduled commercial bank incorporated under the Reserve Bank of India Act, 1934. (2) M/s. Samruddhi Realty Limited with CIN: L07010KA2003PLC032934 (hereinafter referred as the "Respondent") is a limited company, incorporated under the provision of the Companies Act, 1956 / 2013, having its registered office at 2nd Floor, No. 1, Tate Lane, Richmond Road Cross, Bangalore 560025, India. The Respondent / Corporate Debtor is inter alia engaged into the business of construction and development of residential accommodation. The Corporate Debtor has been developing a residential project 'Samruddhi Mystic Wind' situated at Whitefield Junction, Old Madras Road, Bangalore, Karnataka, India ("Project"). (3) In relation to the said Project, the Corporate Debtor had approached the Applicant if it could provide the financial assistance to retail home buyers and assured the Applicant to execute a tripartite agreement between the Corporate Debtor, relevant home buyer(s) / allottees and the Applicant in order to safeguard and protect the interest of the Applicant. In furtherance to the said transaction, some of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Private Limited (Petitioner) against M/s. Samruddhi Realty Limited (Corporate Debtor), U/s.9 of IBC, 2016 R/w Rule 6 of I&B (AAA) Rules 2016, was admitted by the Adjudicating Authority, vide its Order dated 16.04.2019, by initiating CIRP in respect of the Corporate Debtor, appointing Mr. Surender Devasani as IRP, imposing moratorium etc. Thereafter, the IRP made the public announcement in Form - A and invited claims of the creditors for constituting the Committee of Creditors subsequently, the Applicant submitted its claim with the RP vide its e-mail dated January 23, 2020 and there was no acknowledgement of the claim submitted by the Applicant. The Applicant repeatedly made numerous follow - ups with the RP but all in vain. Thereafter, the RP March 3, 2020 replied to the Applicant stating that the claim of the Applicant has been updated on the website of the Corporate Debtor. The website mentioned that the claim of the Applicant has been rejected. (6) Subsequently, the Adjudicating Authority passed an order for initiating liquidation proceedings against the Corporate Debtor dated March 13, 2020, appointing Mr. Pankaj Srivastava, as a liquidator. Pursuant to that, the Liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides that a creditor may appeal to the Adjudicating Authority against the decision of the liquidator accepting or rejecting the claim within fourteen days of the receipt of such decision. That admittedly, the Applicant is challenging the decision of the Liquidator dated 05.09.2020. However, the Applicant has not filed an appeal as required under Section 42 of the Code. (2) The provisions of the Code and the Liquidation Regulations, 2016 casts a duty upon the Liquidator to collect, collate and verify the claims received pursuant to the public announcement. The Liquidator after verification of claims may either admit or reject the claim, in whole or part as the case may be. It is important to discuss the relevant provisions of the Code and the Liquidation Regulations with regards to the admission/ rejection of the claim by the Liquidator. In order for the Applicant to claim as a financial creditor, the Applicant has to show that the amount which the Applicant is claiming was disbursed to the Corporate Debtor for time value of money. In the instant case, the Allottees have approached the Applicant for financial assistance and in turn the Applicant has disbursed the loan amounts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that Section 5(8)(f) of the Code provides that any amount raised under any other transaction, including any forward sale of purchase agreement, having the commercial effect of borrowing. Thus, the amount raised from an allottee under a real estate project should be deemed to be an amount having the commercial effect of a borrowing and therefore the Individual Allottee will be a financial creditor within the meaning of Section 5(8)(f) of the Code as the amounts have been raised by the Corporate Debtor from the Individual Allottees and not from the Applicant. That majority of the Individual Allottees have already filed their claim against the Corporate Debtor with the Respondent, which has been verified and admitted as per the provisions of the Code and therefore, the claim made by the Applicant will be a duplicate claim against the Corporate Debtor which is not permissible under the provisions of the Code. (6) The Applicant submitted its claim with the Liquidator vide email dated 21.05.2020. The Respondent requested the Applicant to provide various documents for substantiation of their claim against the Corporate Debtor. After verification of claim submitted by the Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant that the Applicant can avail opportunity with reference to Public Notification issued by Liquidator, even though its claim was rejected during CIRP by IRP/RP, is not correct and not tenable. While it is true that all claimants, which include claimants during CIRP, have to make/reiterate their claim again to Liquidator, but old claimants will reiterate their claim made earlier in CIRP, and fresh claimants, who have not availed opportunity during CIRP, can make their claim. It is relevant to point out here the Liquidation proceedings are part of insolvency proceedings initiated under the Provisions of Code and it is second stage of CIRP in respect of Corporate Debtor. Moreover, the Liquidator cannot ignore the decisions taken by IRP/RP and reverse them except any new development takes place in such claims. Moreover, there cannot be two claims in respect of same debt. 8. As rightly pointed by the Learned Counsel for the Respondent, that if the Applicant is aggrieved by the decision of then IRP/RP, the Applicant has to take recourse to remedy by way of Appeal as provided under the provisions of Code within fourteen days of the receipt of such decision. It is not in dispute that RP ..... X X X X Extracts X X X X X X X X Extracts X X X X
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