Coram: MR. KHETRABASI BISWAL, MEMBER (JUDICIAL)

MR. SHISHIR AGARWAL, MEMBER (TECHNICAL)

Present:

For the Applicant: Mr. Varun Dutta, Advocate

For the RP/Respondent: Mr. Atul V Sood, Advocate

Mr. Rohan Sood, Advocate

Mr. Arora Vishwas Kumar, Advocate

PER: SH. KHETRABASI BISWAL, MEMBER (JUDICIAL)

SH. SHISHIR AGARWAL, MEMBER (TECHNICAL)

ORDER

The present Application has been filed by M/s Dollar Poly Pipes (India) Pvt. Ltd., through its director Sh. Ramesh Mathur, (hereinafter referred to as the Applicant) under section 60(5) and other applicable provisions of the Insolvency and Bankruptcy Code (hereinafter referred to as the Code) for seeking the following prayer:

(a) Allow the present Application; and

(b) Issue appropriate direction to the Respondent to admit claim of the Applicant against the Corporate Debtor as financial debt on the basis of documents provided by the Applicant;

(c) In the meantime during the pendency of the adjudication of the present Application, the Committee of Creditors be directed not to consider the Resolution Plan (if any) as the claim of the Applicant has not been shown in the list of creditors of the Corporate Debtor;

(d) Refer the Respondent to the Insolvency and Bankruptcy Board of India for exceeding its jurisdiction as provided under the Code and not abiding by the provisions of the Code and underlying Regulations;

2. The relevant facts giving rise to the present Application as submitted by the Applicant are summarized as under:

(a) The Applicant submitted that the Corporate Insolvency Resolution Process (CIRP) of the Corporate Debtor, was initiated pursuant to Order dated 27.02.2023 passed by this Tribunal in C.P. (IB) No. 248/Chd/Chd/2019 filed by M/s Kone Elevator India Private Limited under Section 9 of the Code whereby the petition was admitted, moratorium was declared and Sh. Arvind Kumar was appointed as Interim Resolution Professional (IRP).

(b) The Applicant submitted that the IRP issued a public announcement inviting claims from creditors and thereafter the applicant filed its claim in Form-C (as a Financial Creditor) dated 19.10.2023, which was emailed to the Respondent on 22.10.2023 along with supporting documents.

(c) The Applicant further submitted that it filed a claim of ₹147,600,000/- based on an agreement dated 30.04.2013, under which the Corporate Debtor had allegedly taken a loan of ₹2 crores and agreed to pay returns of ₹12 lakhs per month, with an additional 10% penalty in case of default. The Applicant calculated a default of ₹12,96,00,000/- for the period 2013 to 2022 (9 years), along with penalty/interest of ₹1.80 crores, aggregating to the total claim amount. The Applicant also relied upon blank signed share transfer forms allegedly provided as security and various correspondences exchanged with the Corporate Debtor which are annexed to the Application as Annexure as A-6.

(d) The Applicant also submitted that the Respondent rejected the claim vide emails dated 03.11.2023 and 20.11.2023 on the grounds that (i) the transactions were entered into with erstwhile directors/shareholders in their personal capacity and not with the Corporate Debtor, (ii) the blank signed share transfer certificates were executed by individual shareholders and not by the company, and (iii) no debt was due from the company so as to qualify the Applicant as a financial creditor.

(e) The Applicant further submitted that the said decision is erroneous as the agreement dated 30.04.2013 was executed by the directors in their capacity as directors of the company, thereby binding the Corporate Debtor under principles of agency. The Applicant further submitted that directors act as agents of the company and any contract entered into on behalf of the company binds the company unless personal liability is expressly undertaken. It is also contended that the share certificates given as security were executed in official capacity and that the funds were invested in the Corporate Debtor’s project, thus making the liab