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TMI Blog2020 (6) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... lication. 2. The applicant prays for an urgent hearing of the unnumbered IA filed through E-mail because of lockdown due to pandemic COVID 19 situation prevailing by serving notice upon the Resolution Professional, Mr. Sanjeev Jhunjhunwala. The urgency set out in the application being found satisfactory, this unnumbered IA was listed on today for a hearing through video conferencing (VC) by issuing notice to both parties, i.e., the applicant and the Resolution Professional. The Resolution Professional was also directed to submit brief written notes of defence. 3. Heard both sides, perused the records and the written submissions on the side of the RP. 4. The Ld.Counsel Ms. Manju Bhuteria, for the applicant submits that the inclusion of New Hind Silk House P. Ltd as the financial creditor of CD is not legal and proper and prays for rejecting the claim of the purported financial creditor for the reason that claim of New Hind Silk House P. Ltd admitted by the RP is barred by limitation. Despite objecting the admission of the claim the RP has not revised the constitution of the CoC excluding the New Hind Silk House P. Ltd hence she filed this application challenging the admission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing proof of sending the same to the FC by the CD. According to her nothing was disclosed how the same was sent, by post or by e-mail or by hand delivery. Hence, this balance confirmation cannot be taken as acknowledgement of liability. If it were not relied upon, the claim of the New Hind Silk House Pvt.Ltd, is to be held barred by limitation. She said. 7. Upon the above said contentions, submission on both sides and on perusal of the averments, documents the short point for consideration is whether, admission of the claim of New Hind Silk House P. Ltd. and inclusion of it as a member of CoC is in contravention of any of the provisions of the l&B,Code and Regulations and provisions of the law for the time being in force?. 8. This is a unique application filed by a financial creditor who moved the CP(IB) No. 1582/KB/2019 for initiating CIRP as against the CD / Goouksheer Farm Fresh Pvt. Ltd, by proposing the name of the RP who is the respondent in this IA. However, immediately after the CIRP begins, the applicant lost confidence in the RP and moved an application IA(IB) No. 392/KB/2020, praying for the removal of the RP on the allegation that under tremendous financial crisis and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l also submits that fabrication of the said documents for inclusion of the FC also cannot be ruled out. 10. It is good to have a look at the two documents above refereed. The RP has produced the same along with written submission. Ld. Counsel for the RP submits that this letter of balance confirmation was approved by the CoC in the 5th CoC meeting held on 3rd June, 2020, and the copies of the documents are annexed within the minute. The copy of the said documents in word format read as below: (RP submitted in the Pdf format): [Annexure A-page Nos 48 & 49] [Minutes of the 5th CoC Meeting of the Committee of Creditors (CoC) of Goouksheer Farm Fresh Pvt. Ltd., Corporate Debtor (CD) held on Wednesday, the 03rd day of June,2020 through video Conferencing in Zoom Meeting Platform at 4 pm] Goouksheeer Farm Fresh Pvt. Ltd. 63/3B, Sarat Bose Road Kolkata 700025 Unsecured Loan Group Summary 1-Apr-2016 to 31-Mar-2017 Page 1 Closing Balance Debit Credit Everlight Vincom Private Limited 90,80,334.00 Konark Towers Private Limited 1,20,98,530.00 New Hind Silk House Pvt. Ltd. 1,62,15,000.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he auditor has to be alleged and proved and an action can even be taken against the RP under section 70(2) of the Code if the applicant can succeeds in proving that the RP has deliberately contravened any of the provisions of the Code and admitted the claim by fabricating the letter of acknowledgement. However in this case, the document under challenge being signed by the two directors of the CD, that it contains seal of the CD, the production of the same along with Form C by the FC cannot be doubted unless substantive proof is produced on the side of the applicant. In the absences o such material to doubt the genuineness of the above said disputed documents I am unable to find any merit in the submission on the side of the applicant in this regard. 11. The next challenge is regarding the admission of Audited Balance Sheet upto the financial year ending 31/03/2019. According to her the Balance Sheet for the year 2016-17 and 2017-18 was prepared after the RP appointed auditor for auditing accounts of the CD till the financial year 2018-19 and therefore, it cannot be relied upon. Admittedly the CD was not in operation, and its name was struck off from the register of Companies, W.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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