NCLT (PB) New Delhi (08.08.2019) in S. A. Consultants & Forwarders Private Ltd. vs. Cargo Planners Limited [ CP No. IB-867(PB) 2019 ] while admitting the application U/s 9 of the Code directed the IRP to look for the extortionate transactions on the part of financial creditors, banks, NBFC’s and Asset Reconstruction Companies
Excerpts of the order;
# 14 There is a general complaint received against the financial creditors, banks, NBFC’s and Asset Reconstruction Companies that the amount claimed by them is far more than what is owed by the corporate debtor to them. Many a times the rate of interest is alleged to be exorbitant and allegations are levelled that a penal interest compounded monthly has been charged. We have no mechanism of rectification of claims made. However, the RP, ordinarily have professionals & experts at their disposal and in case the ex- management raises any such issue then the RP must get it settled in order to avoid any injustice to the corporate debtor.
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Author’s comment; In the above case, the IRP / RP will have to collate the claims as per the supporting documents, as per the provisions of the Code and law laid down by the Hon’ble SCI, and to comply with the directions of the AA, he will have to move the application for avoidance of transactions, for exorbitant rate of interest & penal interest U/s 25(2) read with section 50. IRP / RP, does not have any powers to either rectify or reject the claim.
ReplyDeleteHon’ble Supreme Court of India (25.01.2019) in Swiss Ribbons Pvt. Ltd. & Anr. V/s Union of India & Ors. [Writ Petition (CIVIL) NO. 99 OF 2018] held that:-
# 58 ...It is clear from a reading of the Code as well as the Regulations that the resolution professional has no adjudicatory powers.
# 59…..It is clear from a reading of these Regulations that the resolution professional is given administrative as opposed to quasi-judicial powers.
# 60.....As opposed to this, the liquidator, in liquidation proceedings under the Code, has to consolidate and verify the claims, and either admit or reject such claims under Sections 38 to 40 of the Code. Sections 41 and 42, by way of contrast between the powers of the liquidator and that of the resolution professional, are set out herein below: Section 41 and 42 It is clear from these Sections that when the liquidator - “determines” the value of claims admitted under Section 40, such determination is a - decision”, which is quasi-judicial in nature, and which can be appealed against to the Adjudicating Authority under Section 42 of the Code