9911796707
TMI Blog2021 (3) TMI 1382X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited ("The Respondent") of inter alia for following prayers: i. Direct the Resolution Professional to accept the proof of claim submitted by the Applicant and treat the Applicant as a secured financial creditor entitled to all rights and privileges of a secured financial creditor, thereby to reconstitute the Committee of Creditors within 7 (Seven) days from the date of disposal of this Application; ii. Direct that, in case any amount is refunded to the home buyers, the said amount must be first utilized to pay the outstanding dues / loan amounts as set out under the proof of claim submitted by the Applicant and an undertaking to that effect needs to be submitted to the Hon'ble Tribunal 2. The CIRP of M/s Subhkamana Buildtech Private Limited ("The Corporate Debtor") was initiated vide Order dated 26.11.2018 by this bench. The IRP of the Corporate Debtor made public announcement for invitation of claims in Form A on 29.11.2018, and on 05.01.2019, asking all the Creditors of the Corporate Debtor to submit their claims with proof on or before 12.01.2019. 3. The Applicant - Axis Bank Limited is a scheduled commercial bank incorporated under the Reserve Bank of india Act, 1934 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the Applicant. 6. The Applicant had submitted its claim on December 31, 2018, along with all the required information and documents in Form - C which was well in advance before the last date of submission of claims i.e. before 12.01.2019. The Applicant submits that no response from IRP was ever received. Further, various reminders were sent to IRP in relation to the acknowledgment of the claim. On February 3,2019 and February 5, 2019, IRP responded and sent an e-mail to the Applicant, asking the Applicant to submit the voluminous documents in hard copies instead through google drive. The Applicant then attempted to submit the hard copies of the requisite documents with the office of RP. However, IRP refused to accept the hard copies of the said documents and did not cooperate with the Applicant, it is pertinent to mention that as per the Public Announcement dated November 29,2018 and January 5,2019, the Applicant was required to submit the requisite documents and proof of claims by electronic means only. Providing the claim form along with all the supporting documents through electronic means is sufficient compliance under the provisions of the IBC. The Applicant als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the RP that the allottees have already filed their claim with the RP and the same stands admitted and is part of the Resolution Plan. The last communication made between the RP and the Applicant was on 01.07.2019, and the Applicant bank never raised any grievances till the Resolution plan had been submitted by the Resolution Applicant. That in the absence of any claim filed with supporting documents, the RP could not have admitted the claim of the Applicant, and the act of agitating the issue was much later than the submission of the Resolution Plan. That it is admitted position that the Tripartite Agreement entered into between allottees, Applicant and the Corporate Debtor gives rights to the Applicant to move against the Corporate Debtor in case of a default made by the allottees. The relevant part of the Tripartite Agreement is reproduced below; The Borrower/s shall be obliged to pay to the Bank the entire loan amount in accordance with loan Agreement to be executed/executed and the Bank can recall the entire loan from the Borrower/s on any default made by the Borrower/s on any default made by the Borrower/s and/or in circumstances detailed/set out in the said loan Agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove. For these reasons, the NCLAT judgment must also be set aside on this count." Hence, once a Resolution Plan was approved by the CoC, no claim can be accepted and the same shall amount to 'hydra head popping', which would throw into uncertainty the amounts payable by the prospective Resolution Applicant who successfully takes over the business of the Corporate Debtor. 16. That the decision rendered in the above-mentioned judgment was followed by the Hon'ble NCLAT in the matter of "JSW Steel Limited vs. Mahendra Kumar Khandelwal and Ors. [(2020)155 CLA 271", wherein the Hon'ble NCLAT held that 'Successful Resolution Applicant' cannot be asked to face with undecided claims after the 'Resolution Plan' submitted by him and accepted by the 'Committee of Creditors' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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