Claims Filed Long After CoC Approval: The NCLAT’s Approach to Late Claims During CIRP in the D.S. Kulkarni Proceedings

A resolution plan is priced on the claims placed before the committee of creditors (“CoC”). Late claims in CIRP, particularly those raised long after the CoC has approved a resolution plan but while its approval remains pending before the Adjudicating Authority, can affect the certainty of the resolution process. The National Company Law Appellate Tribunal (“NCLAT”) considered such a claim in appeals arising from the insolvency of a real estate developer and also examined whether a memorandum of understanding established a financial debt.

The D.S. Kulkarni Proceedings and the Late Claim

In the corporate insolvency resolution process (“CIRP”) of D.S. Kulkarni Developers Ltd., the CoC approved a resolution plan on 13 August 2021. Applications by the appellants asserting claims were filed in February 2023, about a year and a half later, while approval of the plan by the Adjudicating Authority was still pending.

In appeals decided in January 2024, including Deepak Sakharam Kulkarni & Anr. v. Manoj Kumar Agarwal, RP of D.S. Kulkarni Developers Ltd. & Ors., the NCLAT (Justice Ashok Bhushan, Chairperson, with a Technical Member) held, as reported:

• the memorandum of understanding relied on by the appellant did not establish that the transactions fell within the definition of financial debt in Section 5(8) of the Insolvency and Bankruptcy Code, 2016 (“IBC”); and
• the mere pendency of the application for approval of the resolution plan before the Adjudicating Authority does not give a claimant the right to file a late claim more than a year and a half after the CoC approved the plan.

The Two Questions Separated

Was there a financial debt at all? A document titled as a memorandum of understanding does not, by its label, create financial debt. Section 5(8) requires a disbursal against consideration for the time value of money, and the Supreme Court in Anuj Jain, IRP for Jaypee Infratech Ltd. v. Axis Bank Ltd., (2020) 8 SCC 401, held that both elements must be present. In Global Credit Capital Ltd. v. Sach Marketing Pvt. Ltd. (Supreme Court, 25 April 2024), the Court directed attention to the real nature of the transaction as it appears from the documents read as a whole.

Was the claim in time? Regulation 12 of the CIRP Regulations governs the period for submission of claims. Following the amendment effective 18 September 2023, as described in published commentary, a proviso to Regulation 12(1) allows claims to be submitted up to the date of issue of the request for resolution plans, or ninety days from the insolvency commencement date, whichever is later. A late claim filed after the CoC has approved a plan falls well outside that period.

The Wider Authority

The approach is consistent with the Supreme Court’s decisions:

• Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta, (2020) 8 SCC 531 — a successful resolution applicant cannot be faced with undecided claims after its plan has been accepted.
• Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Co. Ltd., (2021) 9 SCC 657 — claims not part of an approved plan stand extinguished.
• M/s RPS Infrastructure Ltd. v. Mukul Kumar, 2023 INSC 816 — the fact that the Adjudicating Authority has not yet approved the plan does not mean the plan can go back and forth, making the CIRP an endless process.

The counterweight is Greater Noida Industrial Development Authority v. Prabhjit Singh Soni, 2024 INSC 102, where the Supreme Court held that the form of a claim is directory rather than mandatory, that a claim supported by proof must be considered, and that the NCLT has inherent power to recall an order approving a plan in an appropriate case. The distinction is between a claim that was before the professional and was not dealt with, and a claim brought long after the process moved on.

The Position after 26 May 2026

The Insolvency and Bankruptcy Code (Amendment) Act, 2026 reinforces finality while tightening the professional’s duties:

• Section 18(b), as amended, requires claims to be collated in the specified manner, with an Explanation that the interim resolution professional shall verify claims and, if required, determine their value.
• Section 31(6) provides that, unless the plan provides otherwise, claims prior to approval are extinguished and no proceedings, including assessment proceedings, may be continued or instituted; Explanation III deems this to apply to plans approved since the Code commenced, except matters that have attained finality.
• Section 31(2A) requires the Adjudicating Authority to decide on a plan within thirty days, recording reasons for delay, which shortens the window in which late claims have historically emerged.
• Section 35(1)(a), in liquidation, now requires the liquidator to maintain an updated list of claims rather than invite fresh claims, and Sections 38 to 42 have been omitted.

Practical Guidance

• Creditors should monitor the public announcement under Section 15 and file within the Regulation 12 period; a commercial party is expected to be aware of newspaper announcements.
• A claim based on an informal document should be supported by evidence of disbursal, the agreed return and accounting treatment, not merely the document’s title.
• Where a claim was filed but not dealt with, the remedy lies in pointing to the record before the professional, as in Greater Noida, rather than in filing afresh after approval.

Frequently Asked Questions

1. Can a late claim be filed after the CoC approves a resolution plan?
A late claim may face serious limitations once the CoC has approved the resolution plan, particularly where the claim was not submitted within the applicable period under Regulation 12.

2. Does pending approval of a resolution plan allow a new claim to be filed?
Not by itself. The pendency of plan approval before the Adjudicating Authority does not automatically create a right to submit a claim long after the CoC has approved the plan.

3. What did the NCLAT hold in the D.S. Kulkarni case?
The NCLAT held that the pending approval of the resolution plan did not justify the appellants’ substantially delayed claims and that the memorandum of understanding did not establish financial debt under Section 5(8) of the IBC.

4. What is the relevance of Regulation 12 to late claims in CIRP?
Regulation 12 prescribes the framework and applicable period for submitting claims during CIRP. Claims filed substantially outside that period may not be entertained merely because the resolution plan is awaiting approval.

Legal Information Disclaimer

This article provides general information about Indian law as it stood on 16 September 2026. It is not legal advice, and reading it does not create an advocate–client relationship. Statutes, rules and judicial interpretations change, and their application depends on the facts of each matter. Readers should consult the current official text of the laws and judgments cited and should not act on this information without advice specific to their circumstances. This article is published for legal awareness and education and is not intended to advertise or solicit professional work.

Sources / Authorities

1. Insolvency and Bankruptcy Code, 2016 — Sections 5(8), 15, 18, 31, 35 (as amended) — IBBI – Legal Framework
2. Insolvency and Bankruptcy Code (Amendment) Act, 2026 (No. 6 of 2026) — Gazette text (IBBI); Notification S.O. 2625(E) dated 22 May 2026 — IBBI
3. IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 — Regulation 12 — IBBI – Regulations
4. Deepak Sakharam Kulkarni & Anr. v. Manoj Kumar Agarwal, RP of D.S. Kulkarni Developers Ltd. & Ors., NCLAT, New Delhi, January 2024 — Indian Kanoon
5. Anuj Jain, IRP for Jaypee Infratech Ltd. v. Axis Bank Ltd., (2020) 8 SCC 401, Supreme Court of India
6. Global Credit Capital Ltd. v. Sach Marketing Pvt. Ltd., Supreme Court of India, 25 April 2024
7. Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta, (2020) 8 SCC 531; Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Co. Ltd., (2021) 9 SCC 657; M/s RPS Infrastructure Ltd. v. Mukul Kumar, 2023 INSC 816; Greater Noida Industrial Development Authority v. Prabhjit Singh Soni, 2024 INSC 102