Rohit Saini vs Sh. Sandeep Goel Resolution ...

Comp. App. (AT) (Ins) No. 1578 of 2023 & I.A. No. 5688 of 2023

IN THE MATTER OF: Rohit Saini ...Appellant

Versus

Sandeep Goel Resolution Professional Sarvottam Realcon Pvt. Ltd. ...Respondent

Present: For Appellant : Mr. Arsh Bhalla & Mr. Kunal Shahi, Advocates.

For Respondent : Mr. Ankur Mittal & Ms. Yashika Sharma, for Advocates. Mr. Sandeep Goel, for RP. Mr. Ritesh Jain, for IRP.

ORDER

(HYBRID MODE)

19.03.2024 I.A. No. 5688 of 2023

This application is filed for seeking exemption from filing dim/illegible

typed copy in the instant appeal. This application is allowed subject to all just

exceptions

Comp. App. (AT) (Ins) No. 1578 of 2023

1. This appeal is directed against the order dated 18.10.2023 passed by

National Company Law Tribunal, New Delhi Bench, Court -IV (in short

'Adjudicating Authority') in I.A. (IBC)/ 286/ 2023 IN C.P. (IB) No. 901/

ND/ 2020 by which the application filed by the Appellant under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') r/w

Rule 11 of the National Company Law Tribunal Rules, 2016 (in short

'NCLT Rules') praying for a direction to condone the delay of 544 days in

submitting the claim FORM -CA, further seeking a direction to the

Resolution Professional/ Respondent to accept the claim of the Applicant

as Financial Creditor of a total amount of Rs. 42,39,781/- along with 8%

interest and include the name of the Applicant in the list of Financial

Creditors and also to direct the Resolution Professional to provide the copy

of Agenda and Minutes of all the CoC Meetings of the Corporate Debtor till

date has been dismissed.

2. Shorn of unnecessary details, the facts of the case are that Suraj

Kumar Kaushal & Ors. ('Homebuyers') filed an application under Section

7 of the Code against M/s. Sarvottam Realcon Private Limited ('Corporate

Debtor') before the Adjudicating Authority which was admitted on

09.07.2021 and Sandeep Goel was appointed as the Interim Resolution

Professional (in short 'IRP') who was later on confirmed as the Resolution

Professional of the Corporate Debtor.

3. The public announcement was made on 14.07.2021 and the last date

for submission of claim was 26.07.2021 which was further extended upto

07.10.2021.

4. The present Appellant who is also a Homebuyer submitted his claim in

Form CA for an amount of Rs. 42,39,781/- along with documents to the Respondent vide e-mail dated 19.12.2022. There was a delay of 544 days

in submitting his claims.

5. The Respondent rejected the claim of the Appellant vide e-mail dated

20.12.2022 stating that the time period for the claim has expired.

6. The Resolution Plan was submitted by M/s. Anugraham Builders

which was approved by the CoC on 24.12.2022.

7. The Appellant filed an I.A. (IBC)/286/2023 in which the aforesaid

prayers were made. While the said application was pending, I.A. No. 387

of 2023 was filed on 11.01.2023 by the Resolution Professional for

approval of the Resolution Plan. It is submitted that arguments in the said

application were heard and order was reserved on 14.02.2024 but before

that date the application filed by the Appellant was dismissed on

18.10.2023.

8. The Tribunal relied upon a decision of the Hon'ble Supreme Court

rendered in the case of Civil Appeal No. 5590 of 2021 - M/s. RPS

Infrastructure Limited Vs. Mukul Kumar decided on 11.09.2023 in

which it was held that :-

"The mere fact that the Adjudicating Authority has yet not approved the plan does not imply that the plan can go back and forth, thereby making the CIRP an endless process. This would result in the reopening of the whole issue, particularly as there may be other similar persons who may jump onto the bandwagon. As described above, in Essar Steel, the Court cautioned against allowing claims after the resolution plan has been accepted by the CoC."

9. Counsel for the Appellant has submitted that the Tribunal has

committed an error in appreciating the facts as well as the judgment in the

case of M/s. RPS Infrastructure Limited (Supra) and submitted that the

case of the appellant is rather covered by a three-member bench decision of

this Court rendered in the case of Puneet Kaur, through her Attorney

Amrit Pal Singh V/s. K V Developers Private Limited passed in Company

Appeal (AT) (Ins.) No. 390 of 2022 decided on 01.06.2022.

10. It is submitted that the Learned Tribunal has wrongly recorded that

the claim has been set up by the Appellant after the plan was approved by

the CoC. It is rather submitted that the claim was submitted on 19.12.2022

which was approved by the CoC five days thereafter on 24.12.2022.

11. He has then referred to the facts of the case of M/s. RPS

Infrastructure Limited (Supra). It is contended that in this case the CIRP

was initiated on 27.03.2019, public announcement was made on

30.03.2019 and ultimately the CoC approved the Plan on 11.06.2020,

whereas the claim was made on 19.08.2020 after the approval of the plan

by the CoC, therefore, it is submitted that in that background the Hon'ble

Supreme Court has held in Para 21 of the judgment that "The mere fact that

the Adjudicating Authority has yet not approved the plan does not imply that

the plan can go back and forth".

12. It is further submitted that this is not the position in the present case

rather in the case of Puneet Kaur (Supra) the facts were that the Plan was

put up for voting in the CoC between 13.06.2021 to 19.06.2021, whereas

the claim was filed on 14.06.2021 when the voting was still going on and

ultimately the Plan was approved on 20.07.2021.

13. It is thus submitted that in the case of Puneet Kaur (Supra) the

question was framed as to whether after approval of the Resolution Plan on

20.07.2021 by the CoC, the claim of the Appellant(s) stood extinguished?.

This question has been answered by this Court in the following manner

"It is thus clear that extinguishment of claim of the Appellant(s) shall happen only after approval of the Plan by the Adjudicating Authority. The argument of the Respondents that since CoC has approved the Resolution Plan, the claim of the Appellant(s) have been extinguished, cannot be accepted as there is no extinguishment of claim of the Appellant(s) on approval of Plan by the CoC."

14. Although the Appellant has not impleaded the Successful Resolution

Applicant (in short 'SRA') i.e., M/s. Anugraham Builders as a party in this

appeal, yet one of the partners of the said firm, namely, Mr. Ritesh Jain has

appeared during the course of hearing and submitted that he has no

objection to consider the claim of the Appellant.

15. We have heard Counsel for the Parties and perused the record with

their able assistance. The very fact that effected party in this case has given

a concession in so many words that it has no objection if the claim of the Appellant is also entertained and the delay in filing the claim is condoned,

therefore, we need not to go into the merits of this case and decide the

appeal only on the basis of concession made by the Mr. Ritesh Jain.

16. Hence, the present appeal succeeds and the Impugned Order is set

aside. The Respondent/ Resolution Professional shall now accordingly

include the claim of the Appellant and submit the updated claim to the

Adjudicating Authority.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical)

Sim/Ravi