NCLAT (07.01.2019) in Ranjit Das & Ors. Vs. MSX Mall Pvt. Ltd. [Company Appeal (AT) (Insolvency) No. 07 of 2019] held that;
Another application CA 709/2018 has been filed by the RP praying for directions to entertain claims received late i.e. beyond the period of 90 days. This Bench is of the view that receipt of the late claims beyond the period of 90 days would not entitle the claimant to be part of the COC. However, a legitimate claim of an investor or creditor cannot be turned out or rejected till it is a point of no return. In our considered view this situation shall arise only after disbursal of the liquidated estate of the Corporate Debtor as even at the state of liquidation claims are invited.”
Excerpts of the order;
07.01.2019─ The Appellant- ‘Resolution Professional’ has challenged the order dated 26th November, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, which reads as follows:
“Order
Reply has been filed by the RP to CA 615/2018. The grievance stems from the fact that commercial space was rented out to Haldiram. This area was subsequently allotted to various buyers on receipt of full payment. The Corporate Debtor would then distribute the proportional rent to the various allottees/owners in possession in respect of their individual units from the total area of 9857.70 sq. feet leased out to Haldiram. The RP has collected the names of all the allottees/ owners in possession whose units are under lease to Haldiram. Since legally this is an amount of rent to be paid to the owners, for their units under lease to Haldiram It is prayed that the rent due to the various owners be kept outside the purview of the moratorium.
We find merit in the arguments advanced by the lad. Counsel. The rent due from a lessee to the actual owner should not be a subject matter of resolution as the Corporate Debtor is only collecting it on behalf of the allottees who have paid full payment. Such an act, if permitted, would neither be legal nor just and equitable to the allottees who have invested in commercial properties to supplement their monthly income. It is therefore directed that any rent received from Haldiram or any other lessee which the Corporate Debtor has allotted for a purchase consideration will be out of the purview of Section 14(2) of the Code. The RP shall ensure that this amount is not used in any CIR process, but is kept for the time being in an escrow account maintained with a bank. After ascertaining the rent due to each allottees, the same shall be disbursed by the RP to them after prior approval of this Bench.
CA 615/2018 stands disposed off in terms of the above.
Another application CA 709/2018 has been filed by the RP praying for directions to entertain claims received late i.e. beyond the period of 90 days. This Bench is of the view that receipt of the late claims beyond the period of 90 days would not entitle the claimant to be part of the COC. However, a legitimate claim of an investor or creditor cannot be turned out or rejected till it is a point of no return. In our considered view this situation shall arise only after disbursal of the liquidated estate of the Corporate Debtor as even at the state of liquidation claims are invited.”
# 2. On hearing learned counsel for the parties, we find that the amount generator does not belong to the ‘Corporate Debtor’ which was collecting it on behalf of the others and, therefore, if the Adjudicating Authority has asked to release it to the concerned person, we are not inclined to interfere with the same.
# 3. So far as the pending arbitration proceeding is concerned, the arbitration proceedings, if so pending may continue but the award, if any,passed by the Arbitral Tribunal against the ‘Corporate Debtor’ be not given effect during the period of ‘Moratorium’.
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SCI (15.11.2019) in CoC of Essar Steel India Limited vs. Satish Kumar Gupta & Ors.(Civil Appeal No. 8766-67 OF 2019) On delay in filing of a claim Hon’ble SCI observed as under;
# 67. For the same reason, the impugned NCLAT judgment in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority / Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60(6) of the Code, also militates against the rationale of Section 31 of the Code. A successful resolution applicant cannot suddenly be faced with “undecided” claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove. For these reasons, the NCLAT judgment must also be set aside on this count.
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