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TMI Blog2024 (2) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the Appellant failed to comply to the persistent request of the RP for documents. It was pointed out by the Learned Counsel for the Respondent that apart from unilaterally sending a composite invoice, the details of the services provided were not adequately explained by the Appellant except for enclosing a set of random snapshots of television news which find place at page 78-83A of the APB as against the scope of work claimed by the Appellant to be one which included generating positive stories, crisis management, tracking competitor news, overall media management etc. A glance at the proof of services provided on the other hand shows that it contained few newspaper advertisements on a film promotion. There are substance in the contention of the RP that not only were these media clippings skeletal and sketchy but that they were all issued on a single day while the invoice submitted was in respect of services performed for a period which was spread over more than one year. Examining the validity/sustainability of any contractual agreement including its formatting etc lies outside the purview of the charter of duties and responsibilities of the RP. In fact, determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . N. K. Sharma , RP JUDGMENT [ Per : Barun Mitra , Member ( Technical ) ] The present appeal filed under Section 61 of Insolvency and Bankruptcy Code, 2016 ( IBC in short) by the Appellant arises out of the Order dated 21.11.2023 (hereinafter referred to as Impugned Order ) passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench II) in IA No.3594/2022 of CP (IB) No.1397(PB)/2019. By the impugned order, the Adjudicating Authority rejected the application filed by the Appellant, an Operational Creditor, seeking acceptance of their claims which had been rejected by the Respondent/Resolution Professional. Aggrieved by the impugned order, the present appeal has been filed by the Appellant. 2. The Learned Counsel for the Appellant submitted that the Appellant was hired as a media management consultant on a monthly retainership of Rs.10 lakhs per month for which purpose the Appellant had entered into a Consultancy Agreement ( Agreement in short) with the Corporate Debtor on 01.06.2016. It was further submitted that in pursuance of the said Agreement, monthly payments had also been received from the Corporate Debtor from June 2016 to Apr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir previous transactions. Moreover, since there is no evidence on record to show that the Agreement was terminated, the RP was not entitled to deny the claim arising out of the services rendered in the light of the Agreement. The RP by rejecting the claim filed by the Appellant at a time when there was no dispute on the Agreement had not acted in accordance with the CIRP Regulations. It was further asserted that though Regulation 13 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (hereinafter referred to as CIRP Regulations ) entailed upon the RP to verify every claim as on the insolvency commencement date, in the present matter, the RP had failed to properly evaluate and verify the claims of the Appellant though these documents were part of the records of the Corporate Debtor and hence available to the RP. 5. It was further submitted that though the Adjudicating Authority had directed the RP on 11.05.2022 to again consider the claims filed by the Appellant, the RP summarily rejected the claim on 27.06.2022 without considering the documents and various proofs of service already submitted by the Appellant. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e continued business operations of the corporate debtor. Further Section 25(2) (e) and (g) provides that the RP shall undertake to maintain an updated list of claims and prepare the information memorandum in accordance with Section 29 . 11. Equally pertinent to note are the relevant CIRP Regulations in this regard which are as extracted below: 7. Claims by operational creditors. - (1) A person claiming to be an operational creditor, other than workman or employee of the corporate debtor than workman or 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 B of the Schedule I. Provided that such person may submit supplementary documents or clarifications in support of the claim before the constitution of the committee. (2) The existence of debt due to the operational creditor under this Regulation may be proved on the basis of- (a) the records available with an information utility, if any; or (b) other relevant documents, including- (i) a contract for the supply of goods and services with corporate debtor; (ii) an invoice demanding payment for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f debt had already been met by way of submission of documents like invoices, Bank GST statements etc. The RP could not have asked for proof of service as that would amount to adjudication of claims which is beyond the scope of the RP s jurisdiction. Thus, by demanding proof of services, the RP in the present case travelled beyond the statutory regulations. Emphasis was also laid on the fact that the Hon ble Supreme Court of India in Swiss Ribbons Pvt. Ltd. Anr. v. Union of India Ors., AIR (2019) 4 SCC 17 ( Swiss Ribbons in short) has held that the RP has no adjudicatory powers. Hence, the RP in arbitrarily rejecting the bona-fide claims of the Appellant went beyond the statutory provisions and exercised adjudicatory powers at a time when the RP only had administrative powers. 13. Submission was also pressed that the Adjudicating Authority also failed to appreciate that the RP did not carry out the duty of examining the books of accounts of the Corporate Debtor which shows continuous payment made by the Corporate Debtor to the Appellant and deposit of GST for the period 2016-2019. The question of proof of services would have arisen only if the services were ever dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not vested with adjudicatory powers as decided in the Swiss Ribbons judgement of the Hon ble Apex Court. The RP is required to prepare a list of creditors on the basis of the proofs of claim submitted before it. Basis these claims, it is the responsibility of the RP to publish the Information Memorandum so that a genuine resolution applicant gets an accurate idea about the amount that has to be settled in order to take over and revive the business of the Corporate Debtor. 17. Given this mandate, the role of the RP becomes vital to the efficient and transparent conduct of the CIRP process. When claims are submitted to the RP, even though there are no adjudicatory powers vested on the RP in respect of the claims filed before him, it remains undisputed that there is an express provision in the CIRP Regulations which enables RP to seek information towards establishment of the correctness of a claim. The RP is entitled to seek substantiation of claims under Regulation 10 of CIRP Regulations. The duty to verify the claims by the IRP/RP has also been expressly provided under Regulation 13 of the CIRP Regulations. This verification exercise entails upon the RP the responsibility to go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e APB and the relevant excerpts are as reproduced below: Amit Punj Advocate C-139, 3rd Floor, Hari Nagar, New Delhi - 110064 Speed post/Courier/Email 14.09.2020 Ms. Nattasha Garg, Advocate C-177, LGF, Suit # F, Defence Colony, New Delhi 110 024. Re: Your legal notice dated 01.09.2020, issued by you on behalf of your client Mr. Umesh Kumar, R/o Pant House 2, Tower-19, ATS Advantage, Indirapuram, Ghaziabad, U.P. My Client: Shri Narender Kumar Sharma, Resolution Professional, Indirapuram Habitat Centre Pvt. Ltd. Dear Sir, My above named client . It is stated that the Corporate Debtor's records, checked by my client reveals that there is no document or proof, available with the CD or in its records, which even minutely shows that any kind of services were ever provided by your client to the CD at any point of time. It is stated that even along with the Claim Form submitted by your client as Operational Creditor, no proof, whatsoever, was annexed which could establish providing any kind of services by your client to CD. Upon requisition, your client merely furnished the alleged Agreement dated 01.06.2016 and unila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on an application filed by and on behalf of your client only. It is, as such, stated that till the pendency of the said application, your clients ought to have restrained themselves from issuing the legal notice under reply. It is stated that the Corporate Debtor's records, checked by my client reveals that there is no document or proof, available with the CD or in its records, which even minutely shows that any kind of services were ever provided by your client to the CD at any point of time. It is stated that even along with the Claim Form submitted by your client as Operational Creditor, no proof, whatsoever, was annexed which could establish providing any kind of services by your client to CD. Upon requisition, your client merely furnished the alleged Agreement dated 01.06.2016 and unilateral invoices made by your client. It is stated that your client was supposed to furnish proofs of providing actual services under the said alleged agreement, which he has failed to furnish. It is stated that my client found the aforesaid claims of your client frivolous and vexatious and as such, vide letter dated 14.09.2020, the aforesaid claims of your client were denied. It was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed by the Appellant to be one which included generating positive stories, crisis management, tracking competitor news, overall media management etc. A glance at the proof of services provided on the other hand shows that it contained few newspaper advertisements on a film promotion. Moreover, all these advertisements are dated 05.03.2017 while the invoices pertain to a later period. Given this backdrop, the skepticism on part of the RP about the genuineness of the claims cannot be questioned. We therefore find substance in the contention of the RP that not only were these media clippings skeletal and sketchy but that they were all issued on a single day while the invoice submitted was in respect of services performed for a period which was spread over more than one year. 24. After going through the invoices, the RP was of the view that there were no underlying records and hence undertook to verify the genuineness of the claims. We are of the considered opinion that the RP is not expected to rubber stamp the claims filed by the creditors without exercising due diligence while examining the invoices. By merely filing their claims, the creditor cannot rest on its oars and refr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciate how the media news regarding promotion of certain films could be accepted as the media service rendered by the Applicant to CD. Thus, we find no infirmity in the conclusion drawn by the RP from the book of accounts and balance sheets of the CD, that he could not find any media service rendered by the Applicant to the CD during the period for which the consultancy fees are claimed. ( Emphasis supplied ) 26. The IBC framework has endowed the RP with the cardinal responsibility as facilitator of the CIRP process. This obligates the RP to take reasonable care and diligence while performing his duties. That being so the RP is very much required to undertake appropriate verification and analysis of the claims filed. RP cannot afford to be unmindful of the fact that he is expected to assist in the CIRP process in a fair and objective manner in the best interest of all stakeholders. As an officer of the court vested with administrative powers, the RP is expected to conduct the CIRP process with fairness, diligence, forthrightness and highest sense of responsibility. It is quite clear from the sequence of events in the present facts of the case that the RP had been cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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