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Judgment
237B, Bommasandra Industrial area, Hosur Road, Bangalore – 560 099.
Per: Rajeswara Rao Vittanala, Member (J)
I.A.No.53 of 2020 in C.P.(IB)No.39/BB/2018 is filed by M/s.Festo India Private Limited (hereinafter referred to as 'Applicant/Petitioner') U/s 60(5) of the IBC, 2016, R/w Rules 11 & 34 of the NCLT Rules, 2016, by inter alia seeking to recall Order dated 05.11.2019 passed in C.P.(IB)No.39/BB/2018.
Brief facts of the Application, which are relevant to the issue in question, are as follows:
Initially, the Applicant/Petitioner namely M/s.Festo India Private Limited has filed Company Petition bearing C.P.(IB)No.39/BB/2018, U/s 9 of the IBC, 2016, R/w Rule 6 of the I&B (AAA) Rules, 2016, by inter alia seeking to initiate CIRP in respect of M/s.SPM (India) Limited (Respondent/Corporate Debtor) on the ground that it has committed default for total outstanding amount of Rs.50,28,428.88/-(Rupees Fifty Lakhs Twenty Eight Thousand Four Hundred Twenty Eight and Eighty Eight Paise Only). After considering the matter, this Adjudicating Authority disposed of the case vide order dated November 5th, 2019 by granting liberty to the Applicant/Petitioner to approach Ms. Sumana Rao, IRP appointed in C.P.(IB)No.101/BB/2019 vide order dated 05.11.2019 with its claim, within a period of two weeks from the date of receipt of copy of the order, and thereafter, the IRP is directed to consider the claim of the Petitioner, in accordance with law and communicate her decision to the Petitioner.
It is stated that certified copy of the Order dated 05.11.2019 was collected by the Applicant/Petitioner on 18.11.2019. The Applicant/Petitioner immediately contacted the IRP and came to know that the public announcement had been issued by the IRP fixing the last date of submission of claims as 25.11.2019. Therefore, the Applicant/Petitioner did not make as per direction. However, subsequently, the Applicant/Petitioner came to know that an Application had been filed by IRP, U/s 12A of the IBC, R/w Regulation 30A of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, bearing I.A.No.640 of 2019 in C.P.(IB)No.101/BB/2019 by inter alia seeking to withdraw the case as the matter has been settled between the Respondent and M/s.SMC Corporation (India) Pvt. Ltd. Accordingly, the Application was allowed by this Adjudicating Authority vide Order dated 10.12.2019. The Applicant/Petitioner came to know of the same when a copy of the order was released subsequently on the website of NCLT, which was downloaded by the Applicant on 24.12.2019. The IRP in I.A.No.640 of 2019 that no claims had been received from Creditors till the last date for receiving claims as per the IRP being 25.11.2019 and one claim was submitted late and rejected. In the above circumstances, M/s.SMC Corporation (India) Private Limited and the Respondent had settled the matter between them.
It is alleged that order dated 10.12.2019 is erroneous and unwittingly suffers from violation of Principles of Natural Justice. During the course of proceedings in the present Petition, the Respondent issued one cheque to the Applicant/Petitioner for the sum of Rs.4,00,000/- dated 28.08.2019 and subsequently issued three post-dated cheques for the sums of Rs.2,50,000/-, Rs.7,50,000/- and Rs.26,00,000/- dated 31.01.2020, 30.04.2020 and 31.07.2020 respectively, and handed over these cheques to the Applicant/Petitioner on 04.11.2019. The Applicant/Petitioner was advised not to deposit the cheques in light of this Tribunal's Order directing the claims be made before the IRP. It is therefore necessary that the Tribunal recall the Order dated 05.11.2019 to enable the Applicant to deposit the cheques when due.
C.P.(IB)No.101/BB/2019 was permitted to withdraw U/s 12 of the Code by an order dated 10.12.2019 passed by this Adjudicating Authority. Therefore, the Applicant/Petitioner contends that the Applicant is remediless and he is in dilemma whether the Corporate Debtor would honour the post-dated cheques given or not, in view of the withdrawal the admitted Company Petition after the settling the claims thereon.
Heard Shri Vidur Nair, learned Counsel for the Applicant/Petitioner. We have carefully perused the pleadings of the parties and the extant provisions of the NCLT Rules, 2016 and the Orders passed by the Adjudicating Authority in C.P.(IB)No.101/BB/2019 & C.P.(IB)No.39/BB/2018.
As stated supra, the Applicant/Petitioner has not complied with the order dated 05.11.2019 of this Adjudicating Authority passed in C.P.(IB)No.39/BB/2018, wherein the Applicant/Petitioner was granted liberty to approach the IRP appointed in C.P.(IB)No.101/BB/2019 vide order dated 05.11.2019, with its claim, within a period of two weeks from the date of receipt of copy of the order. However, due to the reasons best known to the Applicant/Petitioner, it has failed to avail liberty granted by the Adjudicating Authority.
The contention of the Petitioner that still ninety days is available to make the claim before the Resolution Professional in terms of the Regulation 12(2) of the IBBI (IRP for Corporate Persons) Regulations, 2016, is not at all tenable. It is the duty of the Applicant/Petitioner to comply/avail with the order of the Adjudicating Authority first, in order to prosecute the case further. Therefore, the instant Application is hardly maintainable. However, in order to meet the ends of the justice, we would like to consider and pass following directions.
Since, the Respondent, namely, M/s.SPM (India) Limited is aware of the claim of Applicant/Petitioner along with another Petitioner namely M/s.SMC Corporation (India) Pvt. Ltd. It is bounden duty of the Corporate Debtor to settle the claim of Applicant/Petitioner i.e., M/s.Festo India Pvt. Ltd., along with the settlement of M/s.SMC Corporation (India) Pvt. Ltd. However, the Corporate Debtor failed to do so. Therefore, it will be just and proper to direct the Respondent to honor the three post-dated cheques for an amount of Rs.2,50,000/-, Rs.7,50,000/- and Rs.26,00,000/- dated 31.01.2020, 30.04.2020 and 31.07.2020 whenever it is presented for realization, in order to avoid further litigation on the issue.
In the result, I.A.No.53 of 2020 in C.P.(IB)No.39/BB/2018 is hereby disposed of with the following directions:
a. The Applicant/Petitioner is permitted to deposit the post-dated cheques with its Banker for their realisation, after duly informing the Corporate Debtor about its presentation. And the Corporate Debtor is directed to honor those cheques in order to avoid further litigation.
b. If the Respondent/Corporate Debtor failed to settle the claim of the Applicant/Petitioner, the Applicant/Petitioner is at liberty to file fresh Company Petition in accordance with law.
c. No order as to costs.