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30 July, 2018
The National Company Law Tribunal, New Delhi Bench (“Adjudicating Authority”) in its recent order dated May 21, 2018 passed in M/s Globe Express Services (Oversees Group) Ltd. & Anr. vs. M/s M.M. Cargo Container Line Pvt. Ltd. & Ors., Case No. (IB) 204(ND)/2017 has clarified the position with respect to the acceptance of claim by Creditors after commencement of the liquidation process. The Adjudicating Authority, by way of the present order, has held that till the distribution of the assets by the liquidator, the claim of the Creditor can be considered.
The brief facts which necessitated passing of the present order are that SBS Transpole Logistics Pvt. Ltd. (“Creditor”) had filed an application before the Adjudicating Authority seeking inclusion of its claim and for consideration of the same in the process of the liquidation.
The Adjudicating Authority while entertaining the application, took into account that the fact that the name of the Creditor was reflected in the balance sheet of the Corporate Debtor.
Further, in the present case the Resolution Professional also confirmed that the at the point of finalizing the Resolution Process the claim of the Creditor was considered by him.
The Creditor’s application before the Adjudicating Authority was objected by the liquidator/Resolution Professional on the grounds that it would increase the costs and/or once the liquidation proceedings have commenced, he cannot include the claim unless permitted by the Bench (Adjudicating Authority).
However, the Adjudicating Authority was not inclined to accept the aforementioned arguments/objections on the following grounds:-:-
(a) The Insolvency and Bankruptcy Code, 2016 mandates the Resolution Professional to collect all the claims and therefore, it would be the duty of the liquidator to entertain and ascertain all claims whether or not filed by the Claimant;
(b) The Creditor’s claim was considered by the Resolution Professional at the point of finalizing the Resolution Process;
(c) In the present case, name of the Creditor was reflected in the balance sheet of the Corporate Debtor and the Resolution Professional also confirmed that at the point of finalizing the Resolution Process the claim of the Creditor was considered by him.
(d) There have been precedents which suggest that the claim was taken into account at the winding up stage wherein it was considered just and expedient;
(e) The increase in expenses would be a part of the liquidation process.
Accordingly, the Adjudicating Authority allowed the Creditor’s application and directed the liquidator to consider the claim of the Creditor. While passing the order, the Adjudicating Authority categorically clarified that till such period the assets under liquidation are not distributed, non-inclusion of a verified claim should not be summarily rejected and it is only after the distribution of assets that no further claim can be entertained.
For further information, please contact:
Priyanka Anand, Associate Partner, Clasis Law
priyanka.anand@clasislaw.com
Saumya Dev, Clasis Law
saumya.dev@clasislaw.com
