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TMI Blog2023 (3) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... tions have also been made which came into force w.e.f. 01.12.2016. Chapter IV of the Regulations, dedicated to the proof of claims, of various class of creditors in which Regulation 9 is related to the claims of the workmen/employees. A close reading of Regulation 9(2) of the Regulations says that where there are dues to be paid to the workmen or employees of the Corporate Debtor, they may collectively choose an authorised representative to submit their claim with proof but in Form-E of the Schedule. The word used in Regulation 9(2) of the Regulations is may as against shall in Regulation 9(1) of the Regulations which means that Regulation 9(2) of the Regulations is provided more as a matter of convenience for the workmen or employees but still demands a declaration in respect of claim with proof and verification of the Form Particulars mentioned therein. In the present case, firstly, there is no such claims set up by the workmen/employees individually in terms of Regulation 9(1) of the Regulations by resorting to form-D as is evident from Annexure B appended with the application i.e. CA (IB) No. 650/KB/2019. Besides, it has been the positive case of Respondent that even this list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o was replaced by Bijay Murmuria as the Resolution Professional (RP) in the second meeting of Committee of Creditors (CoC) held on 04.12.2018. 2. The RP published form-G on 05.02.2019 in financial express (English) and in Aajkaal (Bengali) for the purpose of inviting Expression of Interests (EOIs) in which the last date for submission of EOIs was 20.02.2019. The RP received EOI from two Prospective Resolution Applicants (PRAs) on 20.02.2019 i.e. Prudent ARC Limited and Gloster Limited. In the meanwhile, M/s Hooghly Infrastructure Pvt. Ltd. also filed an application towards EOI. The said application was allowed by the Adjudicating Authority vide order dated 01.04.2019. Thereafter, two resolution plans from M/s Gloster Limited and M/s Hooghly Infrastructure Pvt. Ltd. were received by the RP till the last date of submission of resolution plan i.e. 06.04.2019 (17:00 PM). The RP received the forensic audit/due diligence report of the Corporate Debtor from the Auditor, namely, V. Singhi & Association, Chartered Accountants on 10.04.2019 in which it was stated that there was no preferential transactions, undervalued transactions, transaction defrauding creditors, extortionate credit tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity has found that the claims of 11 employees were received by the RP within the stipulated period which comes to 0.89 Crore and the RP also admitted the claims of the four workmen, who submitted their claims beyond 90 days, to the tune of Rs. 0.41 Crore and the resolution plan provided allocation of the entire amount to the said workmen. The claim of the four workmen which were submitted beyond 90 days was including the claim of one Apurba Ghorui to the tune of Rs. 0.22 Crore. It has also been observed that the total dues due to the workmen/employees, borne out from the financial statement and included in the information memorandum was Rs. 14.12 Crore out of which claim of 1.30 Crore was allocated by the Resolution Applicant in the plan and balance12.78 Crore was recorded as unclaimed dues of the workmen. It has also come in the order that the Resolution Applicant also agreed to pay 20% of Rs. 12.78 Crore which is yet unclaimed. The Adjudicating Authority recorded a finding that the Resolution Applicant has taken care of their claim and also agreed to pay their dues as per Regulation 38(1) of the CIRP Regulations giving priority in payment over financial creditors and ultimately d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantiated with supporting materials". In this regard, it is submitted that a procedure is prescribed in chapter IV 'proof of claims' of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (in short 'Regulations'). He has referred to Regulation 9 of the Regulations pertaining to the claims by workmen/employees to contend that the claim by a workman or an employee of the Corporate Debtor has to be filed in Form-D appended with the schedule and where there are dues are of numerous workmen or employees of the Corporate Debtor the claim with proof may be filed through an authorised representative but in Form-E of the schedule. It is submitted that the said procedure has not been adopted by the Appellants who had allegedly sent the list (Annexure B) to the RP that too not through the authorised representative as prescribed in Regulation 9(2) of the Regulations. It is submitted that the application, available at pg. 204 of the record of this case dated 11.03.2019 is signed by various office bearers of the trade unions of the Appellants and not by any authorised representative. In this regard, reliance has been placed upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no basis to such claim or figures mentioned therein. In any event I say that no such claim was ever lodged before the RP in response to the invitation of claims made by the RP. I say that the purported head of claim in the table appearing in paragraph 3 of the said application is equally baseless. I say that no such claim was lodged before the RP at any point of time. I thus deny and dispute that a sum of Rs. 60,22,33,718/- can be said to be the sum which is now due and payable by the CD to any workers under any head as alleged or at all." 8. Counsel appearing on behalf of Respondent No. 1 has categorically stated that no such claim whatsoever was ever lodged like 'Annexure B' with him and the total claim received by him from the workmen was to the tune of Rs. 89,28,667/-. He also admitted a claim of Rs. 00.41 Crore though the same was submitted beyond the period of 90 days and thus the resolution plan provides for Rs. 3.90 Crore towards the payment of workmen dues. He has also submitted that the total dues of the workmen/employees as per the financial statements included in the resolution plan was Rs. 14.12 Crore out of which a claim of Rs. 1.34 Crore was allocated being the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the workmen/employees. The said Regulation is reproduced as under:- "9. Claims by workmen and employees. (1) A person claiming to be a workman or an employee of the corporate debtor shall submit [claim with proof] to the interim resolution professional in person, by post or by electronic means in Form D of the Schedule: Provided that such person may submit supplementary documents or clarifications in support of the claim, on his own or if required by the interim resolution professional, before the constitution of the committee. (2) Where there are dues to numerous workmen or employees of the corporate debtor, an authorised representative may submit one 'claim with proof' for all such dues on their behalf in Form E of the Schedule. (3) The existence of dues to workmen or employees may be proved by them, individually or collectively on the basis of - (a) records available with an information utility, if any; or (b) other relevant documents, including - (i) a proof of employment such as contract of employment for the period for which such workman or employee is claiming dues; (ii) evidence of notice demanding payment of unpaid dues and any documentary or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ANSFERRED PURSUANT TO A RESOLUTION PLAN 10. LIST OF DOCUMENTS ATTACHED TO THIS PROOF OF CLAIM IN ORDER TO PROVE THE EXISTENCE AND NON-PAYMENT OF CLAIM DUE TO THE OPERATIONAL CREDITOR Signature of workman / employee or person authorised to act on his behalf [Please enclose the authority if this is being submitted on behalf of an operational creditor] Name in BLOCK LETTERS Position with or in relation to creditor Address of person signing DECLARATION I, [Name of claimant], currently residing at [insert address], do hereby declare and state as follows:- 1. [Name of corporate debtor], the corporate debtor was, at the insolvency commencement date, being the……………..day of…………..20……., actually indebted to me in the sum of Rs. [insert amount of claim]. 2. In respect of my claim of the said sum or any part thereof, I have relied on the documents specified below: [Please list the documents relied on as evidence of claim]. 3. The said documents are true, valid and genuine to the best of my knowledge, information and belief and no material facts have been concealed therefrom. 4. In respect of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. That the above named corporate debtor was, at the insolvency commencement date, being the ________ day of ______ 20 ___, justly truly indebted to the several persons whose names, addresses, and descriptions appear in the Annexure A below in amounts severally set against their names in such Annexure A for wages, remuneration and other amounts due to them respectively as workmen or/ and employees in the employment of the corporate debtor in respect of services rendered by them respectively to the corporate debtor during such periods as are set out against their respective names in the said Annexure A. 2. That for which said sums or any part thereof, they have not, nor has any of them, had or received any manner of satisfaction or security whatsoever, save and except the following: [Please state details of any mutual credit, mutual debts, or other mutual dealings between the corporate debtor and the creditor which may be set-off against the claim.] Deponent ANNEXURE 1. Details of Employees/ Workmen S NO. NAME OF EMPLOYEE/ WORKMAN IDENTIFICATI ON NUMBER (PAN NUMBER, PASSPORT OR AADHAAR CARD) TOTAL AMOUNT DUE (RS.) PERIOD OVER WHICH AMOUN T DUE 1. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation 9(2) of the Regulations is 'may' as against 'shall' in Regulation 9(1) of the Regulations which means that Regulation 9(2) of the Regulations is provided more as a matter of convenience for the workmen or employees but still demands a declaration in respect of claim with proof and verification of the Form 'Particulars' mentioned therein. 15. In the present case, firstly, there is no such claims set up by the workmen/employees individually in terms of Regulation 9(1) of the Regulations by resorting to form-D as is evident from Annexure B appended with the application i.e. CA (IB) No. 650/KB/2019. Besides, it has been the positive case of Respondent that even this list was never received by the RP because it has been mentioned in the letter dated 11.03.2019 (Annexure A4) that the said list shall be sent by the office bearers of the Appellants by registered post but no evidence is brought on record in this regard that the list was ever sent by registered post to the RP who has categorically denied it by way of an affidavit filed before the Adjudicating Authority. Evidently, there is a total non-compliance of Regulation 9(1) of the Regulations. Similarly, there is non-compli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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