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TMI Blog2020 (9) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... nvertible debentures are long term debt instruments issued by a company that can be converted into equity shares of the company on a future date, since the dispute as to whether it is a debt instrument or not is pending for consideration before the AA, I am not deciding the said dispute here in this application. However being satisfied that IFCI's inclusion as a member in the CoC is disputed by the remaining financial creditors, it appears to me that IFCI cannot be compelled to contribute its part of share towards the CIRP and Liquidation cost. Part payment voluntarily made by the IFCI does not bar it from disputing its liability to pay the amount as demanded by the liquidator. However, to have a fare and just consideration of the objections now raised by the IFCI it appears to me that, that part of the amount to be contributed by the IFCI in accordance of the voting share already determined, by the RP is to be deposited in an interest bearing account of the CD in the name of the liquidator so as to realise the amount by him in case the inclusion of the R4 is found legal and proper. If found it is to be excluded, the amount in deposit is to be refunded to it. Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CD undergoing liquidation. 6. The Ld. Counsel Mr. Rahul Auddy, for the applicant submitted that in the 4th CoC meeting, the CoC had in fact agreed to open a bank account with Bank of Baroda, one of the CoC members and that the CoC members would reimburse the CIRP expenses in accordance with their voting share in the CoC (Annexure - 'A). Till 04/10/2019, i.e., the date of the order of liquidation, the total CIRP cost has been ₹ 90,79,394.00 and the members of the CoC, who are respondents herein, have reimbursed a sum of ₹ 58,87,769.00 (Annexure -'B'). After adjusting the CIRP costs contributions received by the Resolution Professional, a sum of ₹ 30,75,108.00 is still due and outstanding from the CoC members on account of CIRP costs contribution (Annexure -C), which would be borne by the CoC members in accordance with their voting share and details of the same are provided in a chart annexed as Annexure - 'D' to the application. Both the Resolution Professional as well as the Applicant (Liquidator) have in fact vide e-mails demanding the outstanding dues from the CoC members, the respondents herein. In spite of receipt of the said emails (An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of IFCI from the COC. Bank of Baroda has annexed the minutes of the 4th meeting of Committee of Creditors on M/s. Kohinoor Power Pvt. Ltd. In Item 5 of the Minutes, 8th line from bottom, the IRP submitted that in view of the opinion of the Chairperson to seek direction from the Adjudicating Authority to arrive at a decision as to whether to include or exclude IFCI, looking to the complexity of the matter, the Adjudicating Authority to approach immediately. The Chairperson further directed that the CIRP proceed in the meantime. IFCI is not a Financial Creditor and is not bound to contribute the cost of CIRP. Thereafter also on 12-06-2019, IFCI has paid ₹ 3,46,000/- (Rupees Three lacs forty six thousand only) towards payment of IRP fees and meeting cost of valuers etc. 9. Having heard the submissions on both sides it is made clear that the liquidator rushed to this Tribunal without exhausting his remedy to get the fund from the CoC by way of calling for the Stakeholders Constitution Committee (SCC). He would have called for the meeting of the stakeholders and would have placed all his requirements, budgets etc, in advance before the SCC. The Ld. Counsel for the R1,3, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that looking into the complexity of the matter, application be moved to the NCLT for direction immediately. ... ... ... ... ... ... The representative of Bank of Baroda clarified that as agreed by the majority of members as per the First CoC meeting held on 1st September, 2018, Bank of Baroda in consultation with its legal counsel moved an application in NCLT for Change of Resolution Professional and regarding the IFCI Ltd it was decided that necessary directions will be sought from NCLT on this issue upon appointment of new Resolution Professional did not take place till the second COC meeting held on 26th September, 2018, the CoC members requested the Chairperson to take a legal opinion on the issue from a reputed solicitor firm. As the matter could not be concluded hence the members of COC came to a conclusion that now the chairperson should seek NCLT direction on the same. The COC members (majority) other than IFCI Ltd. proposed that till the time the NCLT gives its direction, IFCI may not be allowed to attend the COC meeting as certain confidential discussions take place. The chairperson stated that the COC constitution would remain unchanged till the NCLT's di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culiar nature and circumstances of the case in hand. 12. In view of the matter though the liquidator approached before me without calling SCC meeting and attempted to resolve the issues which would have been harmoniously resolved in between him and the CoC, as submitted by the Ld. Counsel for the CoC, I am not dismissing the application, but disposing it upon the following directions: DIRECTIONS i). The submission of Ld. Counsel for R1,3 and 5 that upon satisfying the balance amount payable by the respondents 1,3 and 5, by the liquidator, it will be paid to him with in 15 days of verification of the records to be submitted to the CoC, is recorded; ii). IFCI/R4 is directed to deposit that part of the amount to be contributed by it in accordance of the voting share already determined, by the RP in an interest bearing account of the CD in the name of the liquidator with in 15 days from the receipt of the e copy of the order: iii). This amount is to be kept in the said account until the disposal of interim applications filed by the Liquidator/IFCI disputing the inclusion of IFCI in the CoC of the CD; iv). In case the IFCI is found was rightly included in the CoC as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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