2022 (2) TMI 461 - Tri - Insolvency and Bankruptcy

Liability of Financial Creditor to pay corporate insolvency resolution fees - liability of Financial Creditors to pay liquidation costs for the liquidation process - Section 53(1)(a) of the I B Code, 2016 - HELD THAT - A careful examination of provisions/regulations of Section 53 of I B Code, 2016, reveals that the contention of the Applicant is misconceived and not supported by any provision of I B Code, 2016 or by any applicable Regulations. Even in any of the judgments on which the learned Counsel for the Applicant placed reliance, nowhere it was stated that a claimant in a liquidation process need not pay CIRP/liquidation costs at all. Similarly, there was nothing to show that a claimant in a liquidation process required to pay the liquidation costs only from the date of admission of its claims and that too in proportion to the amounts actually recovered by it and not in proportion to its admitted claim. Similarly, there was nothing to show that the Applicant is required to pay its share of the liquidation costs only after the realisation of its security interest and once monies are received by it. The contention of the Applicant in respect of its liability to pay its share of liquidation costs in terms of the impugned letter dated 18.07.2021 is rejected. It is not in dispute that the Applicant is a claimant and its claim also admitted to an extent of ₹ 33,64,47,700/-. We have already held herein above that the Applicant whose claims are admitted by the Liquidator to the said extent, is liable to pay its share of the liquidation costs without reference to the date of admission of its claims and without reference to the monies to be received by it - though the Applicant has chosen to stand outside the liquidation proceedings and to realise its security interest, and not a stakeholder, it is also entitled for the same information and documents as entitled by a stakeholder of the liquidation process. Therefore, the Liquidator is liable to share the information and furnish the documents to the Applicant, on par with any other stakeholder of the liquidation process. The various reliefs claimed with regard to the liability of the Applicant to pay its share of the costs of the Liquidator are rejected - application disposed off.

Summary

Issues Involved:
1. Liability to pay corporate insolvency resolution fees and liquidation costs.
2. Proportion and timing of liquidation costs payment.
3. Access to financial information and documents from the Liquidator.

Issue-wise Detailed Analysis:

1. Liability to pay corporate insolvency resolution fees and liquidation costs:
The Applicant sought relief to set aside the letter dated 18.07.2021 issued by the Respondent and to declare that the Financial Creditor is not liable to pay corporate insolvency resolution fees for the process of Biodiversity Conservation India Private Limited. The Tribunal analyzed Section 53(1)(a) of the Insolvency and Bankruptcy Code, 2016, and Regulation 21A of the IBBI (Liquidation Process) Regulations, 2016. It concluded that the Applicant is indeed liable to pay its share of liquidation costs as determined by the Liquidator, rejecting the Applicant's contention that it is not required to pay these costs at all or only from the date of claim admission.

2. Proportion and timing of liquidation costs payment:
The Applicant argued that it should pay liquidation costs only from 04.04.2021 (the date its claim was admitted) and in proportion to the amounts actually recovered, not in proportion to its admitted claim. The Tribunal found no support for this contention in the I&B Code, 2016, or any applicable regulations. It stated that the Applicant must pay its share of liquidation costs without reference to the date of claim admission or the amounts recovered, thus rejecting the Applicant's argument regarding the timing and proportion of payment.

3. Access to financial information and documents from the Liquidator:
The Applicant requested various documents and financial information from the Liquidator, which the Liquidator initially refused to share. The Tribunal examined Regulations 5 and 6 of the IBBI (Liquidation Process) Regulations, 2016. It concluded that although the Applicant chose to stand outside the liquidation proceedings and realize its security interest, it is still entitled to the same information and documents as any other stakeholder. The Liquidator must provide the preliminary report, all progress reports, sale reports, and minutes of stakeholder meetings to the Applicant. However, the Tribunal denied the Applicant's request for the asset memorandum, citing its confidential nature and potential adverse impact on liquidation sales.

Conclusion:
The Tribunal disposed of I.A. No. 245 of 2021 with the following orders:
- The Applicant's reliefs regarding the liability to pay costs as detailed in the letter dated 18.07.2021 are rejected.
- The Liquidator is directed to share information and furnish documents to the Applicant on par with any other stakeholder of the liquidation process.