Peecon Developer Private Limited vs Bimal Agrawal (Resolution ...
- CitationCompany Appeal (AT) (Ins) No. 756 of 2021
Ratio decidendi
The rule this decision rests on
The appellate tribunal dismissed the appeal summarily without notice to the other side, holding that the Adjudicating Authority's dismissal of an application to accept a belated claim was not open to challenge. The tribunal's reasoning, which rests on the following principles, is as follows: A claim submitted after the last date fixed in the public announcement under the insolvency process, and outside the period so prescribed, cannot be admitted merely because the creditor was unaware of the commencement of the process, where the creditor's own delay of 374 days exceeds the prescribed period; the Supreme Court's extension of limitation in its suo motu order on the pandemic does not revive a period that had already expired before the relevant window of that order. Admitting a belated claim at a late stage of a time-bound corporate insolvency resolution process would be unfair to other creditors who complied with the deadline and would dilute the purpose of the public announcement, and an adjudicating authority is entitled to refuse such a claim on that ground without setting the clock back, since doing so would run contrary to the object of the Code.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Peecon Developer Pvt. Ltd. ... Appellant Vs. Bimal Agrawal RP of Dagcon (India) Pvt. Ltd. ...Respondent Present: For Appellant:- Mr. Syed Tamjeed Ahmad, Mr. Sohaib Alam, Advocate
ORDER
(Virtual Mode)
20.09.2021: Ld. Counsel for the Appellant submits that the Appellant
being a Financial Creditor filed an Application I.A No. 295-KB/2021 under
Section 60(5) of IBC r/w Rule 11 of NCLT Rules, 2016 for the direction to the
IRP to accept the claims submitted by the Applicant (Appellant) on 12.12.2020
and the Applicant (Appellant) treat as an Operational Creditor. Inadvertently,
in Form-C mis-typed as a Financial Creditor.
2. It is submitted that Ld. Adjudicating Authority has dismissed the
aforesaid Application erroneously on the ground that the claims of the
Appellant is barred by limitation. Hon'ble Supreme court in Suo Moto Writ
Petition (C) No. 3 of 2020 had categorically held that in cases where the
limitation would have expired during the period between 15.03.2020 till
14.03.2021, notwithstanding the actual balance period of limitation remaining,
all persons shall have a limitation period of 90 days from 15.03.2021.
3. Ld. Counsel for the Appellant submits that Principal Bench of NCLT in
the case of Edelweiss Asset Reconstruction Pvt. Ltd. Vs. Adel Landmarks Ltd.
Company Appeal (AT) (Ins) No. 756 of 2021 2
held that the rejection of claim on the ground of delay is not sustainable
because the provisions has been held to be directory. Therefore, the impugned
order is not sustainable in law and deserves to be set aside. Hence, the Appeal
be admitted for final hearing.
4. According to the Appellant the Appellant has paid a Principal sum of Rs.
2,08,00,000/- through his bank on 22.01.2008, 13.02.2008, 15.02.2008 and
28.03.2003 which is evident from the ledger statements. The Insolvency
proceedings had been commenced against the Corporate Debtor by the order
of Adjudicating Authority dated 20.11.2019. However, the Appellant was
unaware of initiation of commencement of CIRP. On 23.11.2019 the RP has
made a public announcement in newspaper for inviting claims from the
Creditors of the Corporate Debtor and fixed 04.12.2019 last date for
submissions of claims. However, the Appellant was never came across the said
public announcement. He came to know of such announcement on 10.12.2020
and soon thereafter filed its claim alongwith documents with the RP on
12.12.2020. The RP rejecting the claim as the same was filed with delay of 374
days from the last submissions of claims. Thereafter, the Appellant has filed
aforesaid application I.A. No. 295-KB/2020 before the Adjudicating Authority
which is dismissed by the impugned order.
5. It is an admitted fact that the last date for submissions of claims was
04.12.2019, however, the Appellant has filed his claim on 12.12.2020 i.e delay
of 374 days. The Appellant in any case cannot get the advantage of the
Judgment of Hon'ble Supreme Court in Suo Moto Writ Petition (c) No. 03/2020
as prescribed period has already been expired on 04.12.2019 for submitting
the claim. In the impugned order, it is mentioned that the CIRP is at the stage
Company Appeal (AT) (Ins) No. 756 of 2021 3
of about to end. Ld. Adjudicating Authority has also mentioned that if the
Appellant's claims is directed to consider at belated stage it will not only be
unfair to the other creditors who could not file their claim with the RP because
of the delay but would also dilute the purpose of publication of Form-A. CIRP
is a time bound process and if the Adjudicating Authority sets the clock back,
it would certainly go against main objective of the Code.
6. We are convinced with the grounds of dismissal of the Application. we
find no ground to admit this Appeal. Therefore, the Appeal is dismissed
summarily without notice to the other side.
[Justice Jarat Kumar Jain] Member (Judicial)
[Dr. Ashok Kumar Mishra] Member (Technical)
[Dr. Alok Srivastava] Member (Technical)
SC/GC/RR.
Company Appeal (AT) (Ins) No. 756 of 2021
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