2025 (3) TMI 512 - Tri - IBC

Entitlement to Liquidator of additional Liquidation Cost including the Liquidator s Fees - HELD THAT - Perusal of Regulation 4(2)(b) of the IBBI (Liquidation Process) Regulations 2016 envisages that a liquidator is entitled to fees towards realisation and distribution only when he has realised or distributed any amount and not otherwise. It appears that the entire action to sell the Panagarh Unit was conducted solely by the Respondent Banks sans any involvement of the liquidator and the realisation and distribution of the sale has also been done by the Respondent Banks only. Hence the amount apportioned by the Liquidator as his fees towards the sale of Panagarh Unit may not be payable. In the present case it is submitted that the entire action to sell the Panagarh Unit was conducted solely by the Respondent Banks sans any involvement of the liquidator. Further that the realisation and distribution of the sale Panagarh Unit has also been done by the Respondent Banks only hence the Liquidator had no role to play in this sale process. Hence in terms of Regulation 4(2)(b) of the IBBI (Liquidation Process) Regulations 2016 the amount apportioned by the Liquidator as his fees towards sale of Panagarh Unit will not be payable. As such the ratio held in Shikshak Sahakari Bank Ltd. 2025 (2) TMI 270 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI may not apply to the present facts where it was held that In brief with respect to the Secured Financial Creditor the situation is clearly enumerated in Regulation 21-A(2)(a) which is applicable in this case. The Liquidator s fee is also prescribed under Regulation 4. Regulations 4(1) and 4(1A) provides primacy to CoC and consultation Committee. The Respondent s claim that the Liquidator is entitled for a fee under Regulation 4(2)(b) only when he has actually realised or distributed any amount is not tenable in the light of Regulation 21A. In terms of Regulation 21A(2)(a) of the IBBI (Liquidation Process) Regulations 2016 where a secured creditor proceeds to realise its security interest it shall pay as much towards the amount payable under Section 53(1)(a) -for CIRP and Liquidation Costs and under Section 53(1)(b)(i) - for workmen s dues as it would have shared in case it had relinquished the security interest to the liquidator within ninety days from the liquidation commencement date. The provision of fees as Regulation 21A(2)(a) of the IBBI (Liquidation Process) Regulations 2016 envisages is a mandatory provision which makes it imperative for the secured creditor to pay towards the CIRP Costs even if the secured creditor has proceeded to realise its security interest in accordance with law. Conclusion - i) The liquidator was not entitled to fees for the sale of the Panagarh Unit. ii) The Respondent Banks had complied with their obligations under Regulation 21A except for the liquidator s fees related to the Panagarh Unit sale. Application disposed off.

ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal were:

1. Whether the Liquidator is entitled to fees for the sale of the Panagarh Unit, which was conducted solely by the Respondent Banks, under Regulation 4(2)(b) of the IBBI (Liquidation Process) Regulations, 2016.

2. Whether the Respondent Banks have complied with Regulation 21A of the IBBI (Liquidation Process) Regulations, 2016, concerning the payment of liquidation costs.

ISSUE-WISE DETAILED ANALYSIS

1. Entitlement of Liquidator's Fees

Relevant legal framework and precedents: The Tribunal considered Regulation 4(2)(b) of the IBBI (Liquidation Process) Regulations, 2016, which outlines the entitlement of a liquidator to fees as a percentage of the amount realized and distributed. The Tribunal also referenced the case of Shikshak Sahakari Bank Ltd. v. Mr. Jagdish Kumar Parulkar, where the NCLAT held that the liquidator is entitled to fees even if they did not directly realize or distribute the secured asset.

Court's interpretation and reasoning: The Tribunal interpreted Regulation 4(2)(b) to mean that a liquidator is entitled to fees only when they have realized or distributed any amount. Since the sale of the Panagarh Unit was conducted by the Respondent Banks without the liquidator's involvement, the Tribunal found that the liquidator was not entitled to fees for this sale.

Key evidence and findings: The Tribunal found that the Respondent Banks conducted the entire sale process of the Panagarh Unit and realized the proceeds without the liquidator's involvement.

Application of law to facts: Applying Regulation 4(2)(b), the Tribunal concluded that the liquidator was not entitled to fees for the sale of the Panagarh Unit as they did not participate in the realization or distribution of the sale proceeds.

Treatment of competing arguments: The Tribunal considered the liquidator's argument, referencing the NCLAT's decision in Shikshak Sahakari Bank Ltd., but distinguished it on the facts, noting that in the present case, the liquidator had no role in the sale process.

Conclusions: The Tribunal concluded that the liquidator was not entitled to fees for the sale of the Panagarh Unit under Regulation 4(2)(b).

2. Compliance with Regulation 21A

Relevant legal framework and precedents: Regulation 21A of the IBBI (Liquidation Process) Regulations, 2016, requires secured creditors to pay their share of liquidation costs if they choose to realize their security interest.

Court's interpretation and reasoning: The Tribunal interpreted Regulation 21A as mandating secured creditors to contribute towards liquidation costs, even if they proceed to realize their security interest.

Key evidence and findings: The Tribunal found that the Respondent Banks had contributed towards liquidation costs, excluding the liquidator's fees for the Panagarh Unit sale.

Application of law to facts: The Tribunal applied Regulation 21A to determine that the Respondent Banks had complied with their obligations to contribute towards liquidation costs, except for the contested liquidator's fees.

Treatment of competing arguments: The Tribunal acknowledged the Respondent Banks' argument that they had fulfilled their obligation under Regulation 21A by contributing to the liquidation costs and that the liquidator's fees for the Panagarh Unit sale were not applicable.

Conclusions: The Tribunal concluded that the Respondent Banks had complied with Regulation 21A, except for the liquidator's fees related to the Panagarh Unit sale.

SIGNIFICANT HOLDINGS

Preserve verbatim quotes of crucial legal reasoning: "A bare perusal thereof explicates that a liquidator is entitled to fees towards realisation and distribution only when he has 'realised' or 'distributed' any amount and not otherwise."

Core principles established: The Tribunal established that a liquidator is not entitled to fees for the sale of assets conducted solely by secured creditors without the liquidator's involvement in realization or distribution.

Final determinations on each issue: The Tribunal determined that the liquidator was not entitled to fees for the sale of the Panagarh Unit and that the Respondent Banks had complied with their obligations under Regulation 21A, except for the liquidator's fees related to the Panagarh Unit sale.

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