9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (10) TMI 739 - Tri - Insolvency and BankruptcySeeking direction against Resolution Professional to release the amount due towards Gratuity, Leave Encashment and salary during the CIRP of the corporate debtor - same does not form part of the liquidation estate of the corporate debtor - whether Gratuity is payable when no Gratuity fund is created? - HELD THAT - In the instant matter, the Resolution Professional cannot be directed to make payment of gratuity to the applicant as there is no gratuity fund created by the corporate debtor. As regards the salary and leave encashment during the period of CIRP, the same pertains to the amounts payable to an employee for services rendered during the CIRP. In this connection, these expenses clearly fall within the definition of insolvency resolution process cost as defined in section 5(13)(c) of the IBC, 2016. The Resolution Professional is directed to make provisions for payment of salary and leave encashment after taking on record the necessary information from the applicant and as per his entitlement and modify the resolution plan to that extent with the approval of CoC. The Resolution Professional is further directed to report the above compliance at the time of consideration of the Resolution Plan - Application allowed. Seeking direction against respondent to pay car rental of Rs. 15,000/- per month/ per car or part thereof up to the date of delivery of the cars to the applicant for using the car for personal purposes - direction to respondent to hand over the custody of the cars belonging to corporate debtor to the Resolution Professional in view of provisions of Section 18 (f) read with Section 23(2) and read with Section 25(2)(a) of IBC, 2016 - HELD THAT - Under the provisions of the Code, the Resolution Professional is clearly mandated to take possession and to preserve and protect the assets of the corporate debtor. In the present case, the two vehicles should have been in the custody of the Resolution Professional right after the initiation of the CIRP - only with respect to those properties on which the corporate debtor has to exercise rights in judicial and quasi-judicial proceedings , the Resolution Professional cannot bring a claim before the NCLT. This situation however, does not apply to the present case as there is no dispute over the ownership of the vehicles in question and hence, the respondent's reliance on the aforementioned decisions of the Hon ble Supreme Court is clearly misplaced. Therefore, the respondent is directed to handover the possession of above mentioned vehicles to the applicant-resolution professional within 15 days of the date of this order. As regards the payment of car rental upto the date of delivery, it is opined that this issue does not pertain to our jurisdiction as it is not directly related to the insolvency proceedings of the corporate debtor. The aggrieved party is, however, at liberty to move an appropriate forum for redressal of its grievances in accordance with the Law - application allowed. Seeking direction against the respondent to deliver the Refrigeration Vehicle bearing Registration no. PB22G9523 in good condition to the Respondent along with insurance, Registration documents and other tools and tackles - HELD THAT - The respondent is directed to deliver the Refrigeration Vehicle bearing Registration no. PB22G9523 to the Respondent along with insurance, Registration documents and other tools. As regards the payment of car rental/payments upto the date of delivery we hold that this issue does not pertain to the jurisdiction as it is not directly related to the insolvency proceedings of the corporate debtor. The aggrieved party is, however, at liberty to move an appropriate forum for redressal of its grievances in accordance with the Law. Application allowed.
Issues Involved:
1. Release of Gratuity, Leave Encashment, and Salary during CIRP. 2. Possession and Rental Payment for Vehicles belonging to the Corporate Debtor. Issue-wise Detailed Analysis: 1. Release of Gratuity, Leave Encashment, and Salary during CIRP (IA No. 300/2020): - Application Overview: The applicant sought directions against the Resolution Professional (RP) to release amounts due for Gratuity, Leave Encashment, and salary during the Corporate Insolvency Resolution Process (CIRP) of the corporate debtor, arguing these do not form part of the liquidation estate. - Applicant's Claims: The applicant, previously employed as AGM Accounts and Finance, was terminated and sought full clearance of pending dues. The RP responded that only the current month's salary would be dispersed, and other dues would depend on available cash flow. The applicant's earlier challenge to termination was dismissed, allowing him to file claims for employment dues. - Respondent's Defense: The RP argued the application was barred by res judicata since similar facts were considered in a previous dismissal. The applicant did not file claims in the prescribed Form D, and no Gratuity or Leave Encashment funds were created by the corporate debtor. - Legal Precedents Cited: The RP referenced the NCLAT decision in Mr. Savan Godiwala vs. Mr. Apalla Siva Kumar, stating Gratuity payment depends on entitlement and fund availability. Gratuity liability cannot be part of the liquidation estate unless a specific fund exists. - Tribunal's Findings: The Tribunal noted the applicant worked during CIRP, and expenses for services rendered during CIRP fall under "insolvency resolution process costs" as per Section 5(13)(c) of IBC. Gratuity cannot be directed for payment without a created fund. However, salary and leave encashment for services during CIRP are valid claims under CIRP costs. - Judgment: The RP was directed to make provisions for salary and leave encashment payments after verifying necessary details from the applicant and modifying the resolution plan with CoC approval. The application was allowed and disposed of accordingly. 2. Possession and Rental Payment for Vehicles belonging to the Corporate Debtor (IA No. 586/2020 and IA No. 942/2020): - IA No. 586/2020: - Application Overview: The RP sought directions against the respondent to pay car rental and hand over vehicles (Toyota Innova and Ssangyong Rexton) belonging to the corporate debtor. - Respondent's Defense: The respondent claimed one vehicle was already handed over, and the other was used by a suspended director performing duties. The vehicle was not in working condition, and the application was argued to be outside the Tribunal's domain. - Tribunal's Findings: The Tribunal emphasized the RP's duty to take control of corporate debtor's assets under Sections 18(f) and 25(2)(a) of IBC. The respondent's reliance on Supreme Court decisions was misplaced as there was no dispute over ownership. - Judgment: The respondent was directed to hand over the vehicles within 15 days. The Tribunal did not address the car rental payment issue, suggesting the aggrieved party approach an appropriate forum. - IA No. 942/2020: - Application Overview: The RP sought possession of a Refrigeration Vehicle and payment of rent for its use. - Respondent's Defense: Similar to IA No. 586/2020, the respondent claimed the vehicle was not in working condition and reiterated previous arguments. - Tribunal's Findings: Following the reasoning in IA No. 586/2020, the Tribunal directed the respondent to deliver the vehicle and associated documents. - Judgment: The respondent was directed to deliver the vehicle. The issue of rental payments was not addressed within the Tribunal's jurisdiction, and the aggrieved party was advised to seek redressal in an appropriate forum. Conclusion: The Tribunal addressed the issues of Gratuity, Leave Encashment, and Salary during CIRP, directing the RP to make provisions for valid claims. For vehicle possession, the Tribunal mandated the handover of vehicles to the RP but did not adjudicate on rental payments, directing parties to appropriate forums for such claims.
|
