Bank Of Baroda vs Bijay Mumuria & Ors

Bank of Baroda ...Appellant

Vs.

Mr. Bijay Mumuria & Ors. ...Respondents

Present: For Appellant: - Mr. Brijesh Kumar and Ms. Tanisha, Advocates.

For Respondents: - Ms. Pratiksha Sharma and Mr. Ankit Acharya, Advocates for R-1.

Mr. Arun Kathpalia, Senior Advocate with Mr. Mahesh Agarwal, Mr. Himanshu Satija and Mr. Arshit Anand, Advocates.

O R D E R

11.03.2019─ The 'Bank of Baroda'- ('Financial Creditor') on initiation of

'Corporate Insolvency Resolution Process' filed a claim on the basis of which

it was allowed voting shares by the 'Resolution Professional'. Subsequently,

after more than 250 days, the 'Bank of Baroda' filed another application for

enhancing the claim; which was not entertained by the 'Resolution

Professional'. Against such decision, the Appellant- 'Bank of Baroda' moved

before the Adjudicating Authority (National Company Law Tribunal), Kolkata

Bench, Kolkata, which by impugned order dated 26th February, 2019,

rejected the application as the 'Resolution Plan' had already been approved

under Section 31 which reads as follows:

Contd/-............

-2- "ORDER

Ld. Counsel for the financial creditor appears Ld. Counsel for the Resolution Applicant appears. CA(IB) No. 78 & 170/KB/2019 are filed by the Bank of Baroda, i.e. the Financial Creditor for revision of their claim which has not been considered by the RP and the CoC without any reason. These applications are not maintainable because plan has also been approved by CoC. Both the application in CA (IB) No. 78 & 170/KB/2019 stand rejected, though they are filed before approval of the plan. The Resolution Applicant to proceed with conducting the affairs of the Corporate Debtor.

Matter stands adjourned for further consideration on 26.04.2019."

2. Learned counsel appearing on behalf of the Appellant submits that the

revision of claim was based on record and the 'Resolution Professional' has

failed to consider the same. However, it is accepted that the revision of claim

was filed after about 250 days and much before the same 'Information

Memorandum' was published and the 'Resolution Plan' was approved by the

'Committee of Creditors'. Thereafter, the plan having approved by the

Adjudicating Authority under Section 31 of the Insolvency and Bankruptcy

Code, 2016, the Adjudicating Authority held that the application was not

maintainable.

Company Appeal (AT) (Insolvency) No. 229 of 2019 -3-

3. Learned counsel for the Appellant submitted that the 'Resolution

professional' has no jurisdiction to reject the claim. Reliance has been

placed on the decision of this Appellate Tribunal in "Navneet Kumar Gupta

v. Bharat Heavy Limited─ Company Appeal (AT) (Insolvency) No. 743 of

2013" disposed of on 26th February, 2019.

4. Similar issue fell for consideration before the Hon'ble Supreme Court

in "Swiss Ribbons Pvt. Ltd. & Anr. Vs. Union of India & Ors.', Writ

Petition (Civil) No. 99/2018 (2019 SCC OnLine SC 73)" wherein also the

Hon'ble Supreme Court held that the 'Resolution Professional' has no

jurisdiction to decide the claim but the 'Liquidator' has a jurisdiction to

decide such claim at the time of liquidation. However, such question is not

required to be decided in the present appeal, the plan having approved. In

fact, the decision of the 'Resolution Professional' does not amount to

rejection of the claim, but determination of claim for constitution of the

'Committee of Creditors', which was constituted on the basis of original

claim. Thereafter, the Appellant being member of the 'Committee of

Creditors' not raised the issue immediately but after about 250 days. In the

circumstances, no relief can be granted. However, we make it clear that the

order passed by the Adjudicating Authority or this Appellate Tribunal will

not come in the way of the Appellant to move before appropriate forum for

appropriate relief.

Company Appeal (AT) (Insolvency) No. 229 of 2019 -4-

The appeal is dismissed with aforesaid observations. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) Member(Judicial) Ar/g

Company Appeal (AT) (Insolvency) No. 229 of 2019