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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 ..... on 19.03.2022 which was rejected by the RP. 4. It is pertinent to mention that the resolution plan jointly submitted by Sharda Constructions & Corporation Pvt. Ltd. and Vikram Infratech Developers Pvt. Ltd. was approved by the CoC in its 11th CoC meeting held on 18.10.2021 whereas the claim in Form B was filed much after on 19.03.2022. 5. Aggrieved against the rejection of the claim by the RP, the Appellant filed I.A. No. 1106 of 2022 before the Tribunal that it came to know about the initiation of CIRP against the Corporate Debtor when the Respondent preferred an I.A. No. 2919 of 2021 for recovery of Rs. 30,42,900/- but the claim of Rs. 6,05,09,000/- filed in Form 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the relief clause challenged both the orders; order dated 31.03.2023 approving the Resolution Plan and order dated 31.03.2023 rejecting I.A. filed by the Appellant for admitting claim of the Appellant. 3. Learned counsel for the Respondent submits that Appellant has filed separate Appeal challenging approval of the Resolution Plan which was withdrawn on 19.07.2023, hence, this amendment application be not allowed. It is submitted by the Respondent that subsequent Appeal was also barred by time. 4. Be that as it may. We are of the view that in the present Appeal Company Appeal (AT) (Ins.) No. 748 of 2023 both the orders were challenged in the relief clause. Amendment as prayed can be allowed. 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der (SMP). The Corporate Debtor supplied a total of 87 tons of SMP but failed to complete the transaction. The Appellant filed a suit for specific performance before the Civil Court, Ahmedabad against the CD for directions to the CD to supply the remaining quantity of SMP but while the said suit was pending, the CD was admitted into CIRP on 27.10.2020 as a result of which the Respondent No. 1 issued the public announcement on 11.11.2020 under Section 15 of the Code and last date was fixed as 24.11.2020 to submit claims. Before the Appellant could have filed the claim, the CoC in its 11th meeting, constituting all financial creditors of the CD, held on 18.10.2021, approved the resolution plan of the SRA. The Appellant 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 Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Vs. Ashish Chhwacchria, RP, Essar Power Limited & Ors., CA (AT) (Ins) No. 25 of 2022 in which this Court has held that the decision of the RP to admit a contingent claim at a nominal value of Rs. 1 and in the same decision approved NIL value being given to such OCs. In the end, it is submitted that the Appellant is not a bona fide litigant because the Appellant had already filed a suit before the Civil Court, Ahmedabad for specific performance i.e. to supply the remaining SMP in terms of the purchase order and alternatively, recovery of a sum of Rs. 6,05,09,000/- on account of financial loss which is the subject matter of the application filed under Section 60(5) of the Code by the Appellant. The said suit is stated to 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 Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ought to have been condoned by respondent no. 1. The IBC is a time bound process. There are, of course, certain circumstances in which the time can be increased. The question is whether the present case would fall within those parameters. The delay on the part of the appellant is of 287 days. The appellant is a commercial entity. That they were litigating against the Corporate Debtor is an undoubted fact. We believe that the appellant ought to have been vigilant enough in the aforesaid circumstances to find out whether the Corporate Debtor was undergoing CIRP. The appellant has been deficient on this aspect. The result, of course, is that the appellant to an extent has been left high and dry. 20. Section 15 of the IBC and Regulation 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 proces ..... X X X X Extracts X X X X X X X X Extracts X X X X
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