NCLT Mumbai (10.04.2019) in Natwarlal Shamaldas & Co. vs. Yog Industries Limited [MA 1098/2018 in CP No.82/IBC/NCLT/MB/MAH/2017] held that no prejudice will be caused if the claim of the applicant is adjudicated and admitted. The delay in submission of the claim by the Applicant deserves condonation. Hence, I hereby condone the delay in the submission of the claim in accordance with the provisions of code
Excerpts of the order;
# 1. This is an application filed by one of the Operational Creditors of the Corporate Debtor whose claim is rejected by the Liquidator for not filing the claim before the due date prescribed for filing of claims. This application is filed for condoning the above said delay and seeking directions to the Liquidator for admitting and verifying the Applicant’s claim. The Liquidation proceedings of the Corporate Debtor initiated on 12.04.2018.
3. The Liquidator vide his letter dated 09.08.2018 declined to admit the claim on the ground that he received the claim after the expiry of the prescribed time limit for receiving the claim. As per section 38 of the IBC, 2016, the Liquidator can accept the claims filed within 30 days of the commencement of the liquidation process. Section 38 says:
“38. Consolidation of claims:
(1) The liquidator shall receive or collect the claims of creditors within a period of thirty days from the date of the commencement of the liquidation process….”
# 5. After considering the submissions made by the Applicant, although, the liquidator in the present case is correct in rejecting such time barred application for filing claim as he does not have any authority to entertain the same, however, section 42 comes to the rescue of a claimant when his/her claim is accepted/rejected by the Liquidator. The claimant can file an appeal before the Adjudicating Authority against such decision of the liquidator within fourteen days of the receipt of such decision.
# 6. Further, it is worth to place reliance on the decision of the respected co-ordinate NCLT Bench in Kolkata in the matter of UCO Bank V. Nicco Corporation Ltd. [CA No. 31/KB/2018 in CP No. 03/KB/2017], order dated 14.02.2018, wherein a similar question arose before the Adjudicating Authority, that whether such condonation application can be allowed or not. Rule 177 and 178 of Companies (Court) Rules, 1959 deal with the procedure on failure to prove the debt within the time fixed.
As per Rule 177, if any creditor fails to file proof of his debt with the liquidator within the time specified in the advertisement referred to in Rule 148, such creditor may apply to the court for relief, and the court may, thereupon, adjudicate upon the debt or direct the liquidator to do so.
As per Rule 178, any creditor who has not proved his debt before the declaration of any dividend or dividends shall be entitled to be paid out of any money for the time being in the hands of liquidator available for distribution of dividend, any dividend or dividends which he may have failed to receive before that money is applied to the payment of any future dividend or dividends, but he shall not be entitled to disturb the distribution of any dividend declared before his debt was proved by reason that he has not participated therein.
# 7. In T.R. Rajakumari v. Motion Picture Producers Combine Ltd. AIR 1942 Mad. 349, it was held and thus a well settled proposition of the law that a creditor may come in and prove his debt at any time before the final distribution of the assets, but he cannot disturb any dividend which has already been paid.
# 8. Therefore, in my opinion, because the liquidation proceedings are yet to be finalized in the present case, no prejudice will be caused if the claim of the applicant is adjudicated and admitted. The delay in submission of the claim by the Applicant deserves condonation. Hence, I hereby condone the delay in the submission of the claim in accordance with the provisions of code. The Ld. Liquidator is directed to consider the claim of the Applicant and admit the same after determining its veracity.
----------------------------------------
No comments:
Post a Comment