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TMI Blog2020 (9) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Corporate Debtor under section 14(2) and section 60 of the Insolvency & Bankruptcy Code, 2016, seeking orders of injunction be passed restraining the Respondents from disconnecting the electricity supply at the Bishnupur plant of the corporate debtor till completion of the corporate insolvency resolution process. 2. Due to COVID-19 situation lockdown was declared and is still continuing partially, the normal operation of NCLT Kolkata Bench is yet to be resumed. Being satisfied with the urgency set out in the applications the petition were listed for hearing on today (21.08.2020) through Video Conference. 3. Vide order dated 7th February, 2020 the Corporate Debtor M/s. Rohit Ferro Tech Limited was ordered to undergo Corporate Insolvency Resolution Process and Mr. Supriyo Kumar Chaudhuri was appointed as the Interim Resolution Professional to oversee the Insolvency Resolution Process. It is stated that the applicant in I.A. 611/KB/2020 is, inter alia, engaged in the business of trade pertaining to purchase, import and sale of diverse commodities. The applicant in the usual course of business imports and procures raw material on facilitator mode as well as on purchase and sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the applicant repeatedly requested the Respondents to prevent unauthorized removal of the pledged goods immediately and holding the respondent No. 1 liable for the losses caused thereby to the applicant, in terms of the agreements with respondent No. 1. However, the Corporate Debtor/Respondent No. 1, its erstwhile Directors and the Resolution Professional have not taken steps and this has led to lodging of police complaints by the applicant with the local police station at Jajpur, vide letter dated 19th November, 2019 and 28th February, 2020. Ultimately, upon a writ being petition bearing No. CRLMP 407/2020 has been filed by the applicant on 12th March, 2020 in the Hon'ble High Court at Orissa, praying for directions on the local Superintendent of Police and ors. for registering the police complaint/FIR lodged by the applicant. The applicant is desirous of selling the goods by public auction. The applicant is in the process of issuing a Notice Inviting Tender for the same. The applicant being a Public Sector Undertaking, under the Govt. of India, cannot enter into a contract with a private entity to dispose of the goods. For the purpose of conduct of the auction/tender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the applicant for use the same would remain pledged. If Corporate Debtor did not pay, the plaintiff was entitled to sell the goods, under the pledge documents. There is a custodian in charge of the goods, selected jointly by the applicant and Corporate Debtor, who is however now not protecting the goods. 8. By February, 2020, the applicant had claims in excess of Rs. 47.00 crores. It filed a suit and obtained an order appointing Receiver dated 17th February, 2020. It then came to learn of the admission of Corporate Debtor in CIRP by an earlier order dated 7th February, 2020 and it had the order discharged on 21st February 2020. The learned counsel submitted that the High Court found prima facie merits in the applicant's case which is why it passed the order dated 17th February, 2020. It is further submitted that from 2019, R-2 to R-4 (suspended Board of Corporate Debtor) have been unauthorizedly removing goods as has been intimated by the Custodian from time to time. It is submitted that in spite of the Complaint made to police, and the writ petition filed in Orissa for a direction upon police, R-2 to R-4 with their associate are unauthorizedly removing goods. 9. The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been unauthorisedly removed and lifted from heap No. 10 at Rohit Ferro Tech Limited plant at Jajpur and has been replaced by mere Ash to camouflage the lifting/removal. The picture sent by MSTC's custodian is attached herewith. Since RFTL is undergoing IBC proceedings and consequently the RFTL plant at Jajpur, Odisha is now under your control and supervision, such repeated unauthorised removal of material pledged to MSTC (Chrome ore) at RFTL, Jajpur is clearly indicative of mala fide intention, against the financial interest of MSTC. Since no payment has been made to us for such unauthorised removal reported by our custodian. Accordingly, you are requested to make payment for the material consumed or return the material that has been unauthorisedly lifted. The matter is being viewed very seriously at our end and you are requested to advise your Officials at RFTL Plant to desist from any such illegal activity if no payment is forthcoming. We shall be constrained to take the matter forward". 12. He further referred to Section 14(1)(d) of the Code, which says that under the law if possession is with the Custodian, the pledge could not have happened. Custodian is not a party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of February, 2020 which the inventory was prepared. It is submitted by the learned counsel that the erstwhile promoter has nothing to do with it. It is stated that after the order of CIRP, it is in the custody of the RP, and therefore, they do not have any cause of action against the erstwhile directors. For seeking any action against the suspended board of directors, they will have to show as to what the position prior to the order of CIRP had been. 17. Heard the Counsel at length and perused the records. We do not find any substance in the arguments of the applicant that he still has any right to the goods or raw material lying in the premises of the CD, even after the order of CIRP. The provisions of the Code are very much clear in this regard. The RP is the final authority who will take possession of the moveable and immovable properties of the CD after the order of CIRP. Anybody has any claim against the CD, it will have to submit its claim to the RP. What is admittedly true in this matter is that the applicant has already submitted its claim and its claim has already been admitted and taken on record, which hardly leaves any scope for the applicant to further claim any right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Metric Tonnes capacity. The plant has been operating in 3 (three) shifts of 8 (eight) hours each with total on-roll manpower (employee) strength of 139 persons and contractual (off roll) workmen staff of about 587, totaling 726 staff, executives and workmen. Since the inception the Respondent No. 1 has been supplying power/electricity at the Bishnupur plant of the corporate debtor to enable the corporate debtor to conduct the manufacturing activities therein. For the purpose of obtaining supply of power/electricity for industrial use the corporate debtor entered into an agreement dated 2nd March, 2010 with the Respondent No. 1 for supply of electricity at the Bishnupur plant of the corporate debtor of a contract demand of 15000 KVA per year. The Respondent No. 1 has allotted the corporate debtor a consumer identification number being 932324100. 21. It is further submitted that immediately, after taking charge of the affairs of the Corporate Debtor, the Applicant by letter dated 14th February, 2020 intimated the Respondent No. 3 about the commencement of the CIRP of the Corporate Debtor and requested the Respondents to submit their claim of outstanding amount in the prescribed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing No. 635000093078 dated 4th April, 2020 for the month of March, 2020 amounting to Rs. 10,40,84,356/- including dues relating to the pre-CIRP period wherein the amount levied for the month of March, 2020 is Rs. 2,68,54,087.86/-. The due date for payment of the said invoice was 15th April, 2020 i.e. within 10 days from the date of issue of invoice. The Applicant issued another letter to the Respondent No. 3 dated 16th April, 2020 once again requesting the Respondents to file its claim for the pre-CIRP period in accordance with the provisions of the Insolvency & Bankruptcy Code, 2016 and bifurcate the invoice for the month of February, 2020 into two separate invoices, i.e. one invoice relating to the pre-CIRP period (upto 6th February, 2020) and the other invoice for the period commencing from 7th February, 2020 to 29th February, 2020. The Applicant also requested the Respondents not to take any coercive action against the corporate debtor including disconnection of electricity, the same being an essential service under the provisions of the Code and also since the same would jeopardize the going concern status of the Corporate Debtor. The Applicant apprised the Respondents about h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The Applicant states that the dues in relation to the period prior to the commencement of CIRP (i.e., upto 6th February, 2020) cannot be paid by the Applicant at the current moment as per the provisions of the Code. The applicant has prayed for an order of injunction restraining the Respondents from disconnecting the electricity supply at the Bishnupur plant of the corporate debtor till completion of the corporate insolvency resolution process. It is further prayed that an order of injunction be passed restraining the Respondents from taking any coercive step against the corporate debtor in furtherance to its disconnection notice bearing No. C/BC/BAN/39/3591 dated 17th March, 2020 including disconnection of electricity supply at the Bishnupur plant of the Corporate Debtor [having consumer identification number 932324100]. It is further prayed that the Respondents be directed to bifurcate the amount claimed by the Respondents in its invoice bearing No. 645500089671 dated 5th March, 2020 for the month of February, 2020 into two separate amounts, i.e. one relating to the pre-CIRP period (upto 6th February, 2020) and the other for the period commencing from 7th February, 2020 to 29t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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