Non-Admission Of Claim By Resolution Professional Cannot Be Challenged First Time In Appeal Before Appellate Tribunal: NCLAT

The NCLAT New Delhi bench of Justice Ashok Bhushan (Judicial Member) and Mr. Arun Baroka (Technical Member) has held that non admission of claim in the Resolution Plan by the Resolution Plan if not challenged before the Adjudicating Authority cannot be challenged in the appeal before the NCLAT. Brief Facts The present appeal has been filed against an order passed by the NCLT by which the resolution plan was approved.The corporate debtor was admitted into insolvency on May 14, 2018. The appellant filed a claim in form F for liabilities arising from CST, VAT, and Sales Tax. The Resolution Professional published multiple updated list of creditors in which the claims of the appellant was reflected as under verification due to pendency of appeal before various authorities. Thereafter, the claim submitted by the appellant in the CIRP of the corporate debtor was not admitted by the RP and the claim of the statutory authorities in the Resolution Plan was shown as NIL. This plan was later approved by both the CoC and the NCLT. Contentions: The appellant submitted that the Appellant is a secured creditor. Adjudicating Authority failed to consider that the claim was submitted by the Appellant within time and Appellant was kept in dark. Appellant came to know that the claim of the Appellant was not admitted only after passing of the order dated 28.11.2019 by the Adjudicating Authority. It was also argued that the order dated 29.11.2019 notices that liability of statutory authority is 'nil' as Resolution Professional has not admitted the claims merely on the ground that the Appeals were pending. On the other hand, the respondent submitted that Resolution Professional having not admitted the claim of Appellant and other statutory claims, Resolution Plan was prepared by the SRA treating the statutory claims as 'nil'. Appellant have not taken any steps with regard to non-admission of the claim. It is not open for the Appellant to challenge the approval of the Resolution Plan. Finally, it was submitted that the Resolution Plan of Respondent Nos.2 and 3 approved by the Adjudicating Authority on 28.11.2019 was challenged upto the Hon'ble Supreme Court and Hon'ble Supreme Court vide its judgment in “Kalpraj Dharamshi & Anr. vs. Kotak Investment Advisors Limited, (2021) upheld the approval of the Resolution Plan. Appellant cannot be allowed to challenge the said order. Observations: The tribunal observed that it is not shown that the Appellant at any point of time raised any grievance regarding non admission of claim nor claimed to have filed any application before the Adjudicating Authority challenging non-admission of the claim. Resolution Professional has published four updated list of creditors, as noted above where the claim of Appellant was reflected and in the list, it was stated that the claim was not admitted. While referring to the Regulation 13 of the CIRP Regulations, the tribunal further observed that the list of creditors shall be available for inspection by the person who has submitted proof of claim and shall be displayed on the website. It is not the case of the Appellant that the list of creditors was not available for inspection and it was not displayed on the website. The list of creditors which has been filed by the Respondent clearly indicate that it was placed on the website. It further added that “the list of creditors mentioned the claim of the Appellant as not admitted but no steps were taken by the Appellant challenging non-admission of the claim. As noted above, SRA has also prepared the Resolution Plan treating the claim of statutory authorities as 'nil'. We, thus, do not find any error in the order of the Adjudicating Authority dated 28.11.2019 approving the Resolution Plan”. It also observed that appellant having not taken any steps for agitating its claim before the Adjudicating Authority at the relevant time, it is not open for the Appellant to raise any grievance for non-allocation of any amount in the Resolution Plan. The same Resolution Plan of Respondent Nos.2 and 3 approved by the Adjudicating Authority on 28.11.2019 was subjected to challenge before this Appellate Tribunal and thereafter before the Hon'ble Supreme Court. The Hon'ble Supreme Court in “Kalpraj Dharamshi & Anr.” (supra) had upheld the order dated 28.11.2019 passed by the Adjudicating Authority approving the Resolution Plan of Respondent Nos.2 and 3. The Hon'ble Supreme Court in the said judgment has upheld the order of the Adjudicating Authority approving the Resolution Plan dated 28.11.2019, the tribunal noted. Finally, the tribunal observed that “we are of the view that no ground has been made out to interfere with the impugned order passed by the Adjudicating Authority approving the Resolution Plan of Respondent Nos.2 and 3.” Case Title: State Tax Officer Vs. Ricoh India Ltd. & Ors Case Number: Company Appeal (AT)...

Non-Admission Of Claim By Resolution Professional Cannot Be Challenged First Time In Appeal Before Appellate Tribunal: NCLAT

Mohd Malik Chauhan

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