Tax Management India. Com
Law and Practice  :  Digital eBook
Research is most exciting & rewarding
  TMI - Tax Management India. Com
Follow us:
  Facebook   Twitter   Linkedin   Telegram

TMI Blog

Home

2024 (1) TMI 303

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... udicating Authority rightly rejected the Application(s). The mere fact that Application for approval of Resolution Plan is pending for consideration by the Adjudicating Authority does not entitle the Appellant(s) to file an Application for acceptance of their Claim after more than one and a half year of the approval of the Resolution Plan by the CoC. The Resolution Plan of the Corporate Debtor, which was approved by the CoC on 13.08.2021 has now been approved by the Adjudicating Authority by order dated 23.06.2023, as has been pleaded by the Appellant in his additional affidavit. The Resolution Plan having been approved, the order approving the Resolution Plan dated 23.06.2023 has also been brought on record as Annexure A7 in IA No.5941 of 2023 filed by the Appellant in Company Appeal (AT) (Ins.) No.923 of 2023. The Resolution Plan has already been approved, which order has also not been challenged by the Appellant. In any view of the matter, after considering the facts and the sequence of event in the present Appeal(s), the Adjudicating Authority has rightly rejected IA Nos.721 and 722 of 2023, refusing to accept the prayer of the Appellant(s) to issue a direction to admit .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ni Company to submit documents to substantiate their claim. On 03.03.2021 D.S. Kulkarni Company again submitted claim, to which the RP vide email dated 28.05.2021 again asked to provide all relevant and supporting documents in respect of the claim. (vi) The Resolution Plan submitted by the Resolution Applicant was approved by the Committee of Creditors ( CoC ) on 13.08.2021 and on 24.08.2021, the RP filed IA No.1950 of 2021 for approval of the Resolution Plan. On 22.02.2023, Plan approval Application was heard and orders were reserved. (vii) In February 2023, IA No.721 of 2023 was filed by D.S. Kulkarni Associates seeking a direction to admit their Claim. Similarly, IA No.722 of 2023 was filed by D.S. Kulkarni Company seeking a direction to admit their claim. In IA Nos. 721 and 722 of 2023, the RP filed its reply. The RP in its reply affidavit stated that no documents having been submitted by the Applicant(s) to substantiate their claim, the claims were rejected. It is submitted that the Resolution Plan was approved on 13.08.2021 and the Applications being IA Nos.721 and 722 of 2023 have been filed in February 2023, which is nothing but an attempt to cause hinderance .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... Debtor. It is submitted that on the basis of MoU and Ledger extract, which were annexed with the Claim Form, the RP ought to have admitted the claims. It is submitted that the Adjudicating Authority committed error in rejecting Application filed by the Appellant(s) being IA Nos.721 and 722 of 2023, although sufficient materials were filed to indicate that amounts were advanced to the Corporate Debtor by Appellant(s), which were reflected in the Ledger extracts as well as in the Bank statements. In the Appeal, the learned Counsel has also referred to IA No.5941of 2023 filed in Company Appeal (AT) (Ins.) No.923 of 2023 where the balance sheet of the Corporate Debtor for the years 2013-14, 2014-15, 2015-16 and 2016-17 have been brought on record, which also reflect the advance made by Appellant to the Corporate Debtor. Similarly in Company Appeal (AT) (Ins.) No.924 of 2023, balance sheet for the same period have been filed reflecting the amount advanced by the Appellant. The learned Counsel submits that in view of the above materials, the claim of the Appellant(s) deserved to be admitted. 5. The learned Counsel for the RP, refuting the submissions of learned Counsel for the Appell .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... Company before the RP. The Item Nos.4 and 5 in the Claim Form are as follows: 4. Total amount of claim (in Rs.) 1) Outstanding amt for advances against tenements, rent etc. Rs.141,30,92,016/- 2) Interest : Rs.25,43,56,563 Total : Rs.166,74,48,579/- 5. Details of documents by reference to which the debt can be substantiated 1. Ledger Extract 2. MOU Copy 9. Only two documents were filed along with the Claim Form, i.e., Ledger extract and MoU. The RP vide his emails and reminders asked the Appellant to submit documents to substantiate their claim. On 03.11.2019, the RP sent the following email to the Appellant: Dear Sir, We have not yet received any supporting documents from your side to substantiate your claims. Please send the same. On Mon, Oct 14, 2019 at 07:40 PM CIRP DSK Developers Ltd. [email protected] wrote: Please provide all the documents to support your claims made. Documents attached are insufficient to substantiate the claims made. 10. No response was given to the emails by the Appellant. On 03.10.2021, .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... the interest paid as per clause 8 shall be adjusted against the share in joint venture profit of the party of the second part. 13. The MoU stated that the Appellant approached the Corporate Debtor for purchasing and or jointly developing the properties. Further, Clause 11 indicates that parties may chose to execute the joint venture and the said consideration amount shall be considered as share/ investment brought by the party of the Second Part. The MoU, which is the basic document submitted by the Appellant to prove financial debt, does not indicate that transactions are covered by Section 5, sub-section (8) of the Code. The consideration according to the MoU was paid either for purchasing the property or for entering into joint venture, where the consideration was to be treated as investment. Joint venture profit has also been captured in Clause 11. The Ledger extract, which has been filed also cannot make the transaction as financial debt. 14. We have looked into the aforesaid MoU and claim of Ledger extract to satisfy ourselves as to whether RP was obliged to admit the claim as financial debt on the basis of said documents. We are of the view that RP has rightly comm .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... of the Resolution Plan. The Adjudicating Authority has rightly taken the view that no good reasons have been explained by the Appellant(s) in filing the Application(s) with great delay of more than one and a half year. Resolution Plan having been approved by the CoC on 13.08.2021, the Adjudicating Authority rightly rejected the Application(s). The Adjudicating Authority has relied on the judgment of this Tribunal in Company Appeal (AT) (Insolvency) No.1050 of 2020 in the matter of Mukul Kumar Vs. M/s RPS Infrastructure Ltd., which judgment has also been approved by the Hon ble Supreme Court in M/s. RPS Infrastructure Ltd. vs. Mukul Kumar. The mere fact that Application for approval of Resolution Plan is pending for consideration by the Adjudicating Authority does not entitle the Appellant(s) to file an Application for acceptance of their Claim after more than one and a half year of the approval of the Resolution Plan by the CoC. 19. As noted above, the Resolution Plan of the Corporate Debtor, which was approved by the CoC on 13.08.2021 has now been approved by the Adjudicating Authority by order dated 23.06.2023, as has been pleaded by the Appellant in his additional affidavit. .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

 

 

 

 

Quick Updates:Latest Updates