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TMI Blog2024 (12) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... g which civil suit has already pending, however, in any case, the Appellant has admittedly filed the claim in Form B on 19.03.2022 much after 18.10.2021 when the members of all the CoC in its 11th meeting approved the plan submitted by the resolution applicant. The contention of the Appellant is that the claim was filed on 19.03.2022 during the period when the order passed in suo motu writ petition (c) no. 3 of 2022 by the Hon ble Supreme Court, therefore, the period was condonable. He has also argued that the claim can be extinguished only after approval of the resolution plan by the Tribunal and has relied upon a decision of this Court in the case of Puneet Kaur [ 2022 (6) TMI 108 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI ] but after the decision of the Hon ble Supreme Court in the case of M/s RPS Infra [ 2023 (9) TMI 516 - SUPREME COURT ] in which the issue was as to whether the appellant s claim pertaining to an arbitral award, which is in appeal under Section 37 of the said Act, is liable to be included at a belated state i.e. after the resolution plan has been approved by the CoC and the answer to this question was given by the Hon ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm B on 19.03.2022 was rejected by the Respondent on the ground of delay. 6. The application No. 1106 of 2022 has been dismissed by the Tribunal vide its impugned order dated 31.03.2023 and hence, the present appeal. 7. The present appeal was filed only after impleading the RP of the CD but on 03.07.2023, Counsel appearing on behalf of the Appellant made a statement that on 31.03.2023 while I.A No. 1106 of 2022 was dismissed the resolution plan submitted by the resolution applicant was approved on an application filed by the RP bearing I.A. No. 2946 of 2021 under Section 30(6) and 31 of the Code, therefore, on 03.07.2023 the following order was passed by this Court:- Learned counsel for the Appellant submits that by the order of the same date i.e. 31.03.2023, the Resolution Plan has also been approved. He prays for adjournment of the Appeal to enable him to file a separate Appeal challenging the order approving Resolution Plan. Appellant is also permitted to amend the Memo of Parties impleading the Successful Resolution Applicant and the Monitoring Committee. List this Appeal on 12.07.2023. 8. On 19.07.2023 this Court also passed the following order:- C.A. (AT) Ins. No. 748 of 2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed. I.A. No. 3892 of 2023 is allowed. 5. Let the amendment in the Appeal be carried out and afresh Amended Appeal be filed by the Appellant within two weeks. 6. Let Reply be filed by the Respondents within two weeks to the Amended Appeal. List the Appeal on 20.11.2023. 10. Grievance of the Appellant in this appeal is that the claims submitted by it has wrongly been rejected, firstly by the RP and secondly by the Tribunal on the ground of delay though the Hon ble Supreme Court while passing the order in suo motu writ petition (c) no. 3 of 2020 in re:cognizance for extension of limitation directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings and the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. He has also relied upon a decision of the Hon ble Supreme Court in the case of GPR Power Solutions Pvt. Ltd. Vs. Mr. Supriyo Chauduri, 2021 SCC Online SC 1328. He has further submitted that the claim of the creditors cannot be rejected on the sole ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the claim five months thereafter on 24.03.2022 which was rejected by Respondent No. 1 on the same day on the ground that it was filed belatedly pursuant to which the Appellant filed an application i.e. 1106 of 2022 before the Tribunal on which the impugned order was passed on 31.03.2023 and on the same day the resolution plan was also approved on an application filed by the Respondent No. 1. 12. Counsel for Respondent No. 1 has submitted that the claim of the Appellant could not have been admitted after the resolution plan was approved by the CoC and in this regard relied upon a recent decision of the Hon ble Supreme Court in the case of M/s RPS Infrastructure Ltd. Vs. Mukul Kumar Anr., Civil Appeal No. 5590 of 2021 decided on 11.09.2023. It is submitted that the Hon ble Supreme Court took note of the fact that IBC is a time bound process, the Appellant being commercial entity was litigating against the CD and that the Appellant ought to have been vigilant and being deficient on that count, its claim cannot be entertained at the stage after approval of the plan by the CoC as it would invariably make CIRP an endless process. He has also submitted that public announcement would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be pending, therefore, the Appellant cannot pursue two remedies before two different forums and is indulging in forum shopping. 13. We have heard Counsel for the parties and perused the record. 14. There is no dispute in regard to the fact that public announcement was made on 11.11.2020 and the last date to file the claim was 24.11.2020. There is also no dispute that the application has been filed by the Appellant on account of loss suffered for which the Appellant has already filed a civil suit on 14.10.2019 before the Civil Court, Ahmedabad in which two prayers have been made, namely, for supplying remaining SMP in terms of the purchase order and recovery of a sum of Rs. 6,05,09,000 on account of financial loss. It is not in dispute as well that the application has been filed in respect of the claim of Rs. 6,05,09,000 regarding which civil suit has already pending, however, in any case, the Appellant has admittedly filed the claim in Form B on 19.03.2022 much after 18.10.2021 when the members of all the CoC in its 11th meeting approved the plan submitted by the resolution applicant. The Tribunal dealt with the application bearing I.A. No. 1106 of 2022 filed by the Appellant to ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 6 of the IBBI Regulations mandate a public announcement of the CIRP through newspapers. This would constitute deemed knowledge on the appellant. In any case, their plea of not being aware of newspaper pronouncements is not one which should be available to a commercial party. 21. The mere fact that the Adjudicating Authority has yet not approved the plan does not imply that the plan can go back and forth, thereby making the CIRP an endless process. This would result in the reopening of the whole issue, particularly as there may be other similar persons who may jump onto the bandwagon. As described above, in Essar Steel,8 the Court cautioned against allowing claims after the resolution plan has been accepted by the COC. 15. We shall also respectfully follow the dicta of the Hon ble Supreme Court in the case of M/s RPS Infra (Supra) which is a judgment delivered by the Hon ble Supreme Court on 11.09.2023 much after the decision in the case of GPR Power (Supra) decided on 29.11.2021 holding therein that once the CoC has approved the plan then no claim is to be entertained. 16. Thus, in our considered opinion, there is no error committed by the Tribunal in rejecting the application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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