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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 ..... eir claim made earlier in CIRP, and fresh claimants, who have not availed opportunity during CIRP, can make their claim - 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. It is not in dispute that RP, as early as on 3rd March, 2020 replied to the Applicant stating that its claim has been updated on the website of the Corporate Debtor and stand rejected. Since the Liquidator has accepted the claims of Allottee in question, the Applicant cannot ask to replace them, that too without impleading those allottees in the instant Application. The Respondent has considered the case of Applicant and rejected its case with cogent reasons and thus the impugned rejection cannot be found fault with. The Applicant, admittedly has right against the allottees in question to proceed basing on various documents executed between the parties - the Applicant failed to make out any case so as to interfere in the impugned action of Respondent. Application dismissed. - I.A.No. 416 of 2020 in C.P. (IB) No. 189/BB/2018 - - - Dated:- 5-2-2021 - Rajeswara Rao ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed housing loan facilities aggregating to ₹ 4,33,64,445/- from the Applicant and the same was disbursed to the Corporate Debtor at the request of the respective allottees / home buyers, out of which an amount of ₹ 3,94,37,881/- remains due and outstanding. The relationship of the Applicant with the Corporate Debtor, was established out of four sets of documents executed between the Applicant, Corporate Debtor and home buyers / allottees. The First set of documents includes documents executed between the Corporate Debtor and home buyers / allottees viz., Allotment Letter; Construction Agreement And Agreement For Sale. The Second set of documents comprises of documents executed between Applicant and the home buyers / allottees viz., Loan Agreement; Indemnity Bond / Undertaking and Power Of Attorney in Favor of Applicant. The Third set of documents is executed between the Corporate Debtor and the Applicant which is Undertaking No Objection Letter Received By The Project Lender. And the Fourth set of documents i.e., Tri-partite Agreement is executed amongst the Corporate Debtor, home buyers / allottees and the Applicant The aforesaid 4 sets of documents are referred as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnouncement, the Applicant started collating all the information pertaining to the aforesaid loan accounts and obtaining the required approvals within the organization for filing of the claim. The Applicant then vide its e-mail dated May 21, 2020, submitted its claim with the Liquidator in Form - D, along with relevant annexures and documents. However, there was no communication from the Liquidator accepting the claim of the Applicant. On September 5, 2020, the Liquidator rejected the claim of the Applicant, through email on the ground that In terms of the Tripartite Agreement it has been observed that the disbursement of the amount for consideration of time value of money has been made by Axis Bank in favor of the Allottee i.e. the borrower and not the Corporate Debtor . The Liquidator has further stated that Applicant is not a financial Creditor in terms of the provisions of the Code. The Liquidator is bound to accept if the same is falling under the definition of claims as reproduced below for ease of reference. However, in the present case, Liquidator failed to perform his obligations as required under Section 40 of the Code. Further, the claim of the Applicant has not been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o lend and Borrowers Agreement to borrow. Clause 2.1(b) stipulates that the The relationship between the Bank and the Borrower, as lender and borrower, shall commence from the date of the Loan Agreement and subsist until all monies due and payable by the Borrower to the Bank under the Loan Agreement and under all other documents pursuant thereto shall have been fully paid to and received by the Bank . Further Clause 2.5 of the Loan agreement provides for repayment of loan and stipulates that the Borrower shall repay to the Bank the amount equated in terms of monthly instalments each by the first day or as per dates set out in the Loan Agreement of each calendar month or such part thereof as shall remain due and owing to the bank. The equated monthly instalment includes interest component. By virtue of the Loan Agreement, the amount has been disbursed by the Bank to the respective Allottee, and the time value of money with regards to the instalment is with respect to the borrower i.e. the Allottee and not the Corporate Debtor. (4) Further stated that, a Tripartite Agreement has been executed between the Bank, Allottee and the Corporate Debtor. The conjoint reading of the Agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bhishek Anand, learned Counsel for the Liquidator through Video Conference. We have carefully perused the pleadings of both the Parties and also extant provisions of the Code and Rules made there under. 5. Mr. Sharad Tyagi, the learned Senior Counsel for the Applicant, while reiterating various averments made in the Application, as briefly stated supra, has further inter-alia submitted that though the claim of Applicant was rejected during stage of CIRP itself by the Resolution Professional, the Applicant has right to submit its claim again before the Liquidator, in pursuant to the Public Announcement in Form-H dated 17.03.2020, as Liquidation is a separate Proceeding, and the Legislature has provided opportunity second opportunity to claimant(s). As per the Agreement executed between the parties, it gives a right to the Bank to claim out of the Liquidation cost of the Corporate Debtor instead of from the Home buyers. The Bank has disbursed the money to the Corporate Debtor. Therefore, the Applicant is entitled for the relief as sought for. 6. Mr. Abhishek Anand, the learned Counsel for the Liquidator, on the other hand, has opposed the claim of the Applicant and it cannot fi ..... 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