Challenges to Insolvency Professional during CIRP under IBC - Getting the claim after 90 days

Challenges to Insolvency Professional during CIRP under IBC

Problem:

In some of the cases claim is received after 90 days.

How resolution professional should act in above cases?

Solutions:

“As per Regulation 12(2) of CIRP Regulations, the claims are to be filed within 90 days from the CIRP commencement date. Therefore, the said regulation limits?the power of an IRP / RP to consider the claims so received.

Though there are certain judgments of the Hon'ble NCLT condoning delays in filing of claim beyond 90 days and issuing directions to IRP/ RP to consider all the claims?if the same are filed prior to the approval of the resolution plan.??

However, recently the Hon'ble NCLAT, in the case of Mukul Kumar Vs. M/s. RPS Infrastructure Ltd. being Company Appeal (AT) (Insol.) 1050 of 2020 dated 30.07.2021, has categorically held as under:

"31. ........, we are of the view that wherever any claim is filed after extended period provided in Regulation 12(2) of the Regulations, the RP should have rejected the claim. The Legislation has not provided any discretion to RP for admitting the claim after the extended period."?(kindly refer to para 29 and 31)

This being the latest legal position, I hereby opine that the claims received by the RP after expiry of 90 days ought not be considered.”

A perusal of the above quoted paragraphs of the said judgement clarifies that the finding of the Hon’ble NCLAT that the RP does not have power to consider a claim after the expiry of the extended time provided in Regulation 12(2) is not premised on the fact whether the claim is filed after or prior to the approval of the resolution plan.

Infact, the said ratio is quite clear that any claim filed post expiry of time prescribed under Regulation 12(2) has to be rejected by the RP.

It is however noteworthy that the creditors might have missed the dead line, as they may not be aware of the initiation of CIRP. Therefore, the best way ahead would be that such creditors approach the Hon’ble NCLT seeking condonation of delay in filing the claim with the RP.

The judgment passed in?Mukul Kumar?case nowhere bars the jurisdiction / power of Hon’ble NCLT to condone the delay in filing of claim by a creditor. The Hon’ble NCLT has appropriate and adequate jurisdiction to look into any question of law or of fact arising from the ongoing CIRP of the corporate debtor.

I must also point out (also mentioned in our opinion) that in past the Hon’ble NCLT has been condoning the delay filing of claim by the creditors, however, such condonation has been granted only on specific applications filed by such creditors whose claims were rejected by the RP on the ground of delay.

I however understand that there is no such order in the present case, therefore, RP may advise the creditors to approach the Hon’ble NCLT by way of appropriate application for condonation of delay in filing their claims with RP.

In case of any work related to IBC, you may contact to Krit Narayan Mishra, [email protected]; 9910859116