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TMI Blog2022 (10) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... pproval of the plan, the entire plan would become unworkable . The Hon ble Supreme Court had mentioned that such surprise Debts cannot be put upon the Resolution Applicant, which were not laid down in its Resolution Plan. If that is allowed, the very calculations on which the Resolution Applicants rely to submit their Resolution Plans, would go awry. This Tribunal also notices that the amended provision as contained in Section 31 of I B Code, 2016 makes the Successful Resolution Plan binding on all concerned, including the Government . It is held in the judicial pronouncement that this particular Amendment to be clarificatory in nature and hence, retroactive / retrospective in operation. Therefore, any Claim, even if it pertains to a date, prior to the effective date of this Amendment, would not be entertained after the Resolution Plan is so approved. This Tribunal upholds the decision of the Resolution Professional adjudicated by the Adjudicating Authority to reject the Claims of the Appellant on the basis that claims are unsupported and documentary evidence furnished by the Appellant were not proper - there are no error in the impugned order. Whether the relief sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the claim of the Appellant. C. Pass any such other order as may be deemed necessary in the interest of justice. 3. It is seen that the Resolution Plan was approved by the Adjudicating Authority on 20.01.2020. From the Impugned Order , it is evident that one `Contingency Fund of Rs. 7 Crore was kept in the Resolution Plan `for a period of 6 months from the Date of Approval of the Resolution Plan which expired, on 20.07.2020 and dismissed the `Application , which was filed before the Adjudicating Authority , only on 29.07.2021. 4. It is further ascertained that the Resolution Professional had requested the Appellant to submit the supporting documents to establish the `Claims and had also listed out the `Documents required. However, the Appellant had failed to furnish those documents and therefore the Resolution Professional stated that he was not able to `Admit the Claim of the Appellant . 5. The Adjudicating Authority held that, in these circumstances, the relief(s), as sought by the Appellant cannot be granted, especially keeping in view of the Judgment of the Hon ble Supreme Court of India, `in the matter of Ghanashyam Mishra . 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Professional to accept the `Claims of the Appellant . 12. Hence, this `Appeal . Respondent s Submissions : 13. The Learned Counsel for the 1st Respondent stated that the Resolution Professional of the Corporate Debtor was appointed vide order dated 13.12.2018. The Corporate Insolvency Resolution Process of the Corporate Debtor had commenced on 01.11.2018 and completed on 20.01.2020 with the Resolution Plan , submitted by the 2nd Respondent getting approved by the Adjudicating Authority . The Monitoring Committee was formed for ensuring the successful implementation of the Resolution Plan with the 1st Respondent as its `Head . 14. The Learned Counsel for the 1st Respondent mentioned that all the `claims related to the details which were updated in the website of the Corporate Debtor periodically during the Corporate Insolvency Resolution Process . However, the Appellant had not come forward in respect of his `Claims along with the `Documentary Evidence , till the Resolution Plan was approved by the Adjudicating Authority and the implementation process commenced. 15. The Learned Counsel for the 1st Respondent further briefed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the requirements as referred to in sub-section (2) of Section 30, it shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors and other stakeholders. Such a provision is necessitated since one of the dominant purposes of the I B Code is, revival of the Corporate Debtor and to make it a running concern. 61.......The legislative intent of making the resolution plan binding on all the stake-holders after it gets the seal of approval from the Adjudicating Authority upon its satisfaction, that the resolution plan approved by the CoC meets the requirements as referred to in subsection (2) of Section 30 is, that after the approval of the resolution plan, no surprise claims should be flung on the successful resolution applicant. The dominant purpose is, that he should start with fresh slate on the basis of there solution plan approved. 86.......The legislative intent behind this is, to freeze all the claims so that the resolution applicant starts on a clean slate and is not flung with any surprise claims. If that is permitted, the very calculations on the basis of which there solution applicant submits its plans, would go haywire and the plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the Corporate Insolvency Resolution Process had commenced on 01.11.2018. As per `Regulation 12 of the CIRP Regulations , the outer limit for filing of `claims with the Resolution Professional is 90 days from the Corporate Insolvency Resolution Process commencement date with all documentary evidence. The claim was filed before the Resolution Professional without sufficient documentation to establish his claims. 23. The Learned Counsel for 2nd Respondent brought out that this `Tribunal in Mukul Kumar vs M/s RPS Infrastructure Ltd passed in Company Appeal (AT) (Insolvency) No. 1050 of 2020, has held that claims filed beyond 90 days cannot be entertained by the `Resolution Professional and deserves to be rejected on that score alone. 24. The Learned Counsel for 2nd Respondent clarified that the relevant provision of the `Contingency Fund which was only for a period of 6 months. Moreover, the `Contingency Fund only enables the payment of first-come-first-serve basis within the 6 months period and as per the Implementation Report , filed by the Resolution Professional , `no funds are due and payable under the `Contingency Fund to anyone at the later stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled to furnish / supply the required documents, to establish his claims, as requested by the 1st Respondent . The approval of a Resolution Plan gives the Corporate Debtor a fresh start and resolves, once and for all, the financial position of the Corporate Debtor as it stood on the day of approval of the Resolution Plan , in order to allow it to have a clean slate for the future. (c) Section 31 of I B Code, 2016, as it stands after 2019 amendment, is as follows- Section 31 I B Code 2016: Approval of Resolution Plan. 31. (1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, 1[including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed,] guarantors and other stakeholders involved in the resolution p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations would reveal, that it requires RP to prepare an information memorandum containing various details of the Corporate Debtor so that the resolution applicant submitting a plan is aware of the assets and liabilities of the Corporate Debtor, including the details about the creditors and the amounts claimed by them. It is also required to contain the details of guarantees that have been given in relation to the debts of the corporate debtor by other persons. The details with regard to all material litigation and an ongoing investigation or proceeding initiated by Government and statutory authorities are also required to be contained in the information memorandum. So also the details regarding the number of workers and employees and liabilities of the Corporate Debtor towards them are required to be contained in the information memorandum. 107 A successful resolution applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who would successfully take over the business of the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... `Tribunal [ also would like to consider its own earlier Judgment in case of Santanu T. Ray vs Tata Capital Financial Services in CA(AT)No. 951 of 2021 on the same issue: Para 12(vii) The Regulation 12(2) contemplates a scenario where claim is not filed within the time stipulated in the public announcement. It is in this scenario this regulation permits filing of the claim on or before 90th day of insolvency commencement date. Prior to amendment, the extended term to file claim was till the approval or resolution plan by the committee of creditors. The said time limit was curtailed and restricted to 90 days from the insolvency commencement date, vide the said amendment of 2018. Therefore, regulation fixes the outer limit for filing of the claim if it is filed after delay. This in fact curtails the power to further condone the delay or to further extend the time. If the delay in the present case is condoned then the same will nullify the amendment made to Regulation 12(2). (f) In the instant `Appeal , before this Tribunal, the Adjudicating Authority approved the Resolution Plan on 20.01.2020, and has taken umbrage of the ratio laid down by the Hon ble Supreme Court of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy Resolution Process . No wonder, `Speed is the essence of I B Code 2016. The Code 2016 is enacted for the sole purpose of reviving the Corporate Debtor and help it, to get back on its Feet, and was not meant for recovery enforcement purpose/procedure. Maintaining a `Claim does not necessitate or carry any nexus between the commission of a `Default and the submission of a `Claim . A Creditor can exercise his right to payment or to remedy for the matured, unmatured, secured, unsecured, Disputed or Undisputed Debts. (c) When the Corporate Insolvency Resolution Process is initiated, the claims of `multiple Creditors of different nature are invited, assessed and verified by the Resolution Professional and then, are included in the Resolution Plan . In I B Code, 2016 to recover the `Debt from the Corporate Debtor , it is necessary for a `Claimant to be a Creditor . While definite, identified or ascertained Claims can be easily accounted for, the problem lies when the Claims which are either inevitable or contingent ones. (d) Regulation 14 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for the Corporate Person ) Regulations (IBBI) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e debtor; (f) reduction in the amount payable to the creditors; (g) extension of a maturity date or a change in interest rate or other terms of a debt due from the corporate debtor; (h) amendment of the constitutional documents of the corporate debtor; (i) issuance of securities of the corporate debtor, for cash, property, securities, or in exchange for claims or interests, or other appropriate purpose; (j) change in portfolio of goods or services produced or rendered by the corporate debtor; (k) change in technology used by the corporate debtor; and (l) obtaining necessary approvals from the Central and State Governments and other authorities.] [emphasis supplied] (f) This `Tribunal has noticed the averments that the `Contingency Fund was maintained for a period of ₹ 6 months from the Date of Approval of the Resolution Plan . The Appellant could not substantiate his `Claims , by furnishing the necessary supporting documents in respect of the Claims, so made. (g) This `Tribunal notices that:- The Resolution Plan as approved by the Adjudicating Authority was successfully implemented; The Successful Resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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