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TMI Blog2022 (9) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... ide publication dated 23.01.2020 and on 15.06.2021, the Liquidator sought balance confirmation from the Appellant, when they came to know about the liquidation proceedings. The present is a case where the Appellant has informed about its claim to the IRP as early as on 06.09.2017 and the Liquidator himself sent letter dated 15.06.2021 asking the Appellant to make payment to the Corporate Debtor. The claim of the Appellant was forwarded to the Liquidator vide letter dated 21.07.2021 and 02.08.2021. Thereafter, the Liquidator wrote to the Appellant proposing settlement of old outstanding amount. The claim, thus, raised by the Appellant was under active consideration of the Liquidator and the view subsequently taken by the Liquidator on 07.01.2022 that claim was not filed within the time period is unsustainable. In the present case Adjudicating Authority committed error in simply rejecting/ dismissing the Appeal of the Appellant without taking into consideration the detailed correspondence, which were exchanged between IRP/Liquidator and the Appellant. Furthermore, no process regarding auction of the assets of the Corporate Debtor has yet been initiated. Hence, in the facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questing that further payments payable by Bajaj Infrastructure Development Co. Ltd. be made in the Escrow Account of the Corporate Debtor. The Corporate Debtor has replied to the notice dated 05.08.2017 issued by Bajaj stating that CIRP has commenced against the Corporate Debtor, hence arbitration could not be invoked. After receipt of letter from IRP dated 10.08.2017, the Bajaj Infrastructure Development Co. Ltd. sent letter dated 06.09.2017 to IRP where it was stated that Bajaj Infrastructure Development Co. Ltd. claimed an amount of Rs.12,20,72,608/- against the Corporate Debtor. After the aforesaid letter, no communication was received from the IRP. (v) No Resolution Plan having been filed by the Resolution Professional, the Adjudicating Authority directed for Liquidation of the Corporate Debtor by order dated 16.01.2020. Respondent No.1 was appointed as Liquidator. The Liquidator issued public announcement on 23.01.2020 requiring claims to be filed on or before 19.02.2020. The Appellant could not notice the publication, nor could file the claim. (vi) on 24.03.2021, the Corporate Debtor sought balance confirmation of Rs.12,78,65,736/- as due to Bajaj Infrastructure Develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Liquidator were in exercise of his power under Section 39(2) of the IBC and when documents and claim was submitted in response to the query made by the Liquidator himself, the same could not be brushed aside on the ground that claim of the Appellant is barred by time. It is submitted that the Appellant has already in the year 2017 itself informed about its claim to the IRP, but unfortunately, the IRP did not respond to the claim. It is submitted that the assets of the Corporate Debtor having not yet been disposed of, the claim of the Appellant can be entertained. The learned Senior Counsel for the Appellant has relied on various judgments of High Court to support his submission that claim cannot be denied to be considered, if the distribution of the assets has not been taken place. 5. The submissions made by learned Senior Counsel for the Appellant has been refuted by learned Counsel appearing for the Liquidator. It is submitted that there is no provision in the Code to condone the delay of submission of claim during the Liquidation process. The Appellant has filed its claim with delay of 687 days, which was rightly rejected by the Liquidator. The last date of submission of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunicated to the IRP. The Appellant s case is that they were not aware of the liquidation process and the publication made by the Liquidator. They could not file the claim within the period prescribed by the Liquidator vide publication dated 23.01.2020 and on 15.06.2021, the Liquidator sought balance confirmation from the Appellant, when they came to know about the liquidation proceedings. The letter dated 15.06.2021 has been brought on the record, where the Appellant was asked to confirm the balance of Rs.12,78,65,736/- and arrange to settle the dues at the earliest. The said letter was immediately replied on 21.07.2021 by the Appellant, where the Liquidator was informed that no balance is due to the Corporate Debtor, rather they have communicated their claim of Rs.12.20 crores. On 2nd August, 2021, details of the claim were filed by the Appellant to the Liquidator, which letter was replied by the Liquidator on 30.08.2021, writing to the Appellant on the subject of settlement of old outstanding amount. In the said letter, statement of account of all the orders submitted by the Corporate Debtor for payment was mentioned. In the letter, Liquidator has also noticed about the claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 38 within such time as specified by the Board. (2) The liquidator may require any creditor or the corporate debtor or any other person to produce any other document or evidence which he thinks necessary for the purpose of verifying the whole or any part of the claim. 10. The letter at best can be treated as a letter in reference to claim of the Corporate Debtor against the Appellant and when in exercise of power of the Liquidator as per Section 39(2) allegations have been made against the Appellant for non-payment, it is always open for the Appellant to raise their defence in respect of the claim against the Corporate Debtor. Although, the above correspondence took place between the Appellant and the Liquidator, but on 07.01.2022 Liquidator communicated that since the claim submitted by the Appellant is not within the time frame, hence, it cannot be accepted. Communication dated 07.01.2022 is as follows: Dear Sir, Sub: Claim with regard to Anand Engineering Limited Ref: Your letter No.2022.01.05/ Liquidator/ Claim-Form-G dated January 05, 2022. We are in receipt of the claim with respect to your client M/s Anand Engineering Limited for an amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stage in liquidation process, the learned Counsel for the Liquidator informed that assets of the Corporate Debtor are yet to be auctioned in liquidation process and no assets have yet been auctioned as on date. In the facts of the present case, we are of the view that the claim of the Appellant was required to be considered by the Liquidator on merits. 13. We may also notice one submission of learned Counsel for the Appellant relying on the judgments of Delhi High Court in Kamla Syntax Ltd. (2018) SCC DEL 9396 and judgment of the Rajasthan High Court in (1972) WLN 68 Ganeshilal Gupta vs. Bharatpur Oil Mills through official Liquidator. The judgment relied by the learned Counsel for the Appellant were judgments in reference to Rule 177 of the Companies (Court) Rules, 1959. Rules 177, permitted a creditor, who fails to file proof of his debt with the Liquidator within the time specified for the purpose, to apply to the court for relief. The above judgments are not helpful in interpreting the provisions under the IBC pertaining to liquidation as well as the Insolvency and Bankruptcy Board of India. (Liquidation Process) Regulations, 2016. With respect to liquidation proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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