Employee State Insurance Corporation vs Mr.B.Ramana Kumar, Liquidator of Krishnaa Energy Private Limited

Per: Dr. DEEPTI MUKESH MEMBER (JUDICIAL)

This IA(IBC)/427(CHE)/2022 filed by Employee State Insurance Corporation, under Section 42 of the Insolvency Bankruptcy Code, 2016, seeking the following reliefs,

It was submitted by the Applicant that CIRP of Corporate Applicant was initiated under Section 10 of IBC, 2016 on 22.11.2019 wherein the Respondent was appointed as Interim Resolution Professional. Pursuant to that liquidation of the Corporate Applicant was ordered by this Tribunal vide order dated 06.01.2022 and the Respondent was appointed as the Liquidator. In the paper publication effected by the Liquidator on 08.01.2022, the last date of submission of the claim before him was fixed at 05.02.2022.

It was further submitted that the Applicant had filed its claim before the Respondent in Form-C dated 01.02.2022, for an amount of Rs.44,78,491/- as an ESI contribution towards the employees of the Corporate Applicant for the period between October 2009 to October 2019, which was accepted by the Respondent to the extent of Rs.32,61,545/-. Thereafter, the Applicant realised that the interest component and the damages were not included in the claim submitted to the Respondent, in Form-C.

Thereafter, Applicant passed an order on 15.03.2022, fixing liability on Corporate Applicant to the tune of Rs.44,78,491/- for a delay in making payments to the Applicant as per the ESIC Act, 1948.

Subsequently, the Applicant on 25.03.2022, sent the above order along with the revised Form-C dated 23.03.2022 to the Respondent and asked him to consider the same as an addendum of the Form-C submitted earlier. However, the Respondent rejected the said request on the ground that the claim was filed 48 days after the last date of submission of the claim viz. 05.02.2022 and he has no authority to condone the delay. Hence, the applicant preferred this application.

Per contra, it was submitted by the Respondent in the counter that the revised Form-C dated 23.03.2022, submitted by the Applicant comprising interest and penalty levied on the Corporate Applicant for a period between October 2012 and January 2022. Since the CIRP of Corporate Applicant was initiated on 22.11.2019, the above said period in the revised Form-C fell in the moratorium period and was hit by Section 14 of IBC, 2016.

Further, it is submitted by the Liquidator that the order dated 15.03.2022 passed by the Applicant against the Corporate Applicant was during the liquidation process of the Corporate Applicant which is against Section 33(5) of IBC, 2016, imposing moratorium.

In addition to that it is further pointed out by the Liquidator that, Section 36 of IBC, 2016 expressly excludes ESIC dues from the definition of Liquidation estate and in view of the above contentions sought to dismiss this application.

Having heard the submissions of both parties. It is seen from the records that the Applicant submitted the addendum to Form-C dated 23.03.2022 to the Respondent vide e-mail dated 25.03.2022. The claims in the said addendum are reproduced below,

On perusing the above, it is noted that the claims were crystallised based on the order dated 15.03.2022 passed by the ESIC against the Corporate Applicant for the interest and the penalty imposed on it.

Here it is relevant to refer to Regulation 12(1) & (2) of IBBI (Liquidation Process) Regulation, 2016.

Referring the above provision, it is clarified that the total claim amount should be crystallised as at the liquidation commencement date and not thereafter and the revised claims should be submitted within 30 days from the liquidation commencement date. In the present case, the revised claim amount was finalized on 15.03.2022 which is much beyond the liquidation commencement date viz., 06.01.2022, and hence could not be admitted at any stretch of imagination, which otherwise abrogates the very purpose of the IBC, 2016.

Moreover, it is noted that in the order dated 13.12.2019 passed in MA/268/IB/2019, this Tribunal had directed the Applicant herein to send the computation chart indicating all details of this alleged claim to the Liquidator, the extract of the order is reproduced below,

In view of the above discussion, we reasonably conclude that this application IA(IBC)/427(CHE)/2022 sans merit. Accordingly, application is rejected and disposed of.