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Judgment
Heard the Learned Counsel for the Petitioner/Appellant in I.A.No.159 of 2021 in Company Appeal (AT)(CH)(INS) No.92 of 2021. According to the Petitioner/Appellant, the ‘Impugned Order’ in IA/856/IB/2020 in CP/193/IB/2018 was passed on 12.02.2021 and that the certified copy was received on 17.02.2021. However, the instant Company Appeal (AT)(CH)(INS) No.92 of 2021 was filed before this ‘Tribunal’ on 01.04.2021. Considering the fact that the present Appeal was filed beyond 30 days as per Section 61(2) of the Insolvency and Bankruptcy Code, 2016 and for the delay of 14 days in preferring the Appeal the Petitioner/Appellant has come out with a reason that due to ill-health, he was unable to travel to Chennai and instructed his Counsel in filing the ‘Appeal’, etc. this ‘Tribunal’ on being subjectively satisfied as to the reasons ascribed in I.A.No.159/2021 condones the delay in question, in the interest of justice, and allows the said application without costs.
According to the Learned Counsel for the ‘Appellant’ the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench (Court-1) Chennai) had dismissed IA/856/IB/2020 in CP/193/IB/2018 filed by the ‘Appellant’ (as an Applicant/Petitioner) on 12.02.2021without costs by inter alia observing that …“since the filing itself is done on 18.02.2020 after the approval of the Resolution Plan, this Tribunal is of the view that the Application cannot be entertained seeking for admission of the partial claim which has been rejected by the Ld. Resolution Professional, for which this Application has been preferred. In the circumstances, we are constrained to dismiss this Application taking into consideration the decision of the Hon’ble Supreme Court of India in the matter of Committee of Essar Steel India Limited vs. Satish Kumar Gupta 7 Ors passed in a Civil Appeal No.8766-67 of 2019 Diary No.24417 of 2019 wherein it has been specifically observed that the Resolution Applicant cannot be allowed to face hydra head suddenly popping up after the approval of the Resolution Plan in relation to the Corporate Debtor of liabilities.” and the said Order is based on non-application of mind, in view of the fact that the ‘Tribunal’ had failed to consider that the Applicant/Petitioner/Appellant is an innocent ‘Home Buyer’, whose claim was rejected by the Second Respondent/Resolution Professional without appreciating the facts and documents.
The Learned Counsel for the ‘Appellant’ submits that the ‘Appellant’ had paid the total sale consideration to the First Respondent Company/Corporate Debtor and hence, the Second Respondent/Resolution Professional should have admitted the Appellant’s claim in full. Also that the erstwhile ‘Directors’ and Management of the First Respondent had categorically admitted they had received cash payments from the Homebuyers, which proves the Appellant’s claim of payment of sale consideration in cash. Therefore, the Second Respondent/Resolution Professional should have admitted the claim of the ‘Appellant’.
It is represented on behalf of the ‘Appellant’ that the Second Respondent/Resolution Professional through an e-mail dated 29.01.2019 provisionally admitted the claim to an extent of Rs.10,56,820/-. As a matter of fact, the disallowance of the other part was mentioned by the Second Respondent due to non-availability of ‘no due certificate’ in the 1st Respondent’s files.
The prime stand of the Appellant is that the Second Respondent had not acted as per the ingredients of Insolvency and Bankruptcy Code, 2016 and hence he was perforced to file IA/856/IB/2020 in CP/193/IB/2018 before the ‘Adjudicating Authority’ seeking for passing of an order in directing the ‘Resolution Professional’ to consider his claim dated 06.08.2018 submitted under Form CA under Regulation 7 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and to approve his claim in full and include the same in the list of creditors maintained by him within the time stipulated by the ‘Adjudicating Authority.
It transpires that the Resolution Plan pertaining to the ‘Corporate Debtor’ was approved on 13.12.2019. IA/856/IB/2020 in CP/193/IB/2018 was filed by the Petitioner/Applicant/Appellant before the ‘Adjudicating Authority’ on 18.02.2020, of course after the approval of the ‘Resolution Plan’, which is per se not maintainable in Law.
As far as the present case is concerned, this ‘Tribunal’ on going through the ‘Impugned Order’ dated 12.02.2021 in IA/856/IB/2020 in CP/193/IB/2018 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench, Court-1, Chennai) is of the considered view that the conclusion arrived at to the effect that the IA/856/IB/2020 in CP/193/IB/2018 cannot be entertained seeking for admission of partial claim after the approval of Resolution Plan pertaining to the ‘Corporate Debtor’ of liabilities in the teeth of the Hon’ble Supreme Court Decision in the matter of Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta 7 Ors. (vide Civil ApealNo.8766-67 of 2019 Diary No.24417 of 2019) is free from legal infirmities. Viewed in that perspective, the ‘Appeal’ sans merits.
In fine, the Instant Company Appeal (AT) (CH) (INS) No. 92 of 2021 is dismissed. No costs.