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TMI Blog2021 (5) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... gation of the earlier constituted Committee of Creditors . This Tribunal on going through the Impugned Order passed by the Adjudicating Authority comes to a consequent conclusion that the observation made inter-alia to the affair that CoC constituted presently by the IRP/RP in derogation of the order passed by it shall stands suspended and shall not exercise any of the powers as provided under the Provisions of IBC, 2016 and the directions issued to the IRP/RP to comply with the directions therein within a period of 10 days from the date of the order. Appeal dismissed. - Company Appeal (AT) (CH) (Ins) No.48 of 2021 - - - Dated:- 30-4-2021 - [ Justice Venugopal M ] Member ( Judicial ) And [ V. P. Singh ] Member ( Technical ) For the Appellant : Mr. P.H.Aravindh Pandiyan, Sr. Counsel For Sandeep Kumar Ambalavanan, Advocate For the Respondent No.1 : Mr.R. Subramanian, Advocate, For the Respondent No.3 : Mr.C. Mohan, Advocate, King and Patridge (For Financial Creditor) JUDGMENT Heard Both sides. 2. According to the Learned Counsel for the Appellant the Company Appeal (AT) (INS) No.48 of 2021 is preferred against an Impugned Order dated 22.04.2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Members who initially constituted the CoC in the year 2017, soon after the order of admission of CIRP of the Corporate Debtor, are no longer Creditors of the Corporate Debtor as on the date of Order and hence, had committed an error in directing the Resolution Professional to convene a CoC including such Members. 6. The Learned Counsel for the Appellant brings to the notice of this Tribunal that 961 days had elapsed between the Judgment of the National Company Law Appellate Tribunal, dated 16.07.2019 in Company Appeal (AT) (INS) 290 of 2017 whereby CIRP of Corporate Debtor was setaside and the Order of the Hon ble Supreme Court dated 03.03.2021 in Civil Appeal No.187, whereby CIRP of the Corporate Debtor restored and the Members of Committee of Creditors should be updated based on the submissions of claims and withdrawal claims, as specified under the I B Code, 2016. 7. It is represented on behalf of the Appellant that the Adjudicating Authority ought to have considered Regulation 12(A) and 13 of the Insolvency and Bankruptcy Board of India (Insolvency Process for Corporate Persons) Regulations, 2016 whereby both the Creditor and Resolution Professional o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed in the 7th Meeting and also 8th Meeting dated 18.2.2020 (Annexure A9) to resolve and oust BVN from CoC. Thus CoC sat in Appeal over Impugned Order and passed resolutions to the contrary, which cannot be said to be legal. 59. Based on the above discussion, we clarify and hold that during CIRP, the IRP is authorised to collate the claims, and based on that he has empowered to constitute the Committee of Creditors. We hold that the Resolution Professional may add to existing claims of claimants already received, or admit or reject further Claims and update list of Creditors. But after categorisation of a claim by the IRP/Resolution Professional we hold that they cannot change the status of a Creditor. For example, if the Resolution Professional has accepted a claim as a Financial Debt and Creditor as a Financial Creditor, then he cannot review or change that position in the name of updation of Claim. It is also to be clarified that while updating list of Claims the Resolution Professional, can accept or reject claims which are further received and update list. 12. The Learned Counsel for the Appellant takes a plea that Form cannot control the Act and cites the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommencement date. 19. The Learned Counsel for the 1st Respondent submits that the 12(A) Application was filed on 22.03.2021, submitted to the 1st Respondent and Form FA was given on 22.03.2021 and since the Bank Guarantee was not given it was returned and the 1st Respondent can revise the amounts of claims admitted in terms of Regulation 14(2). 20. The Learned Counsel for the 1st Respondent contends that the Impugned Order of the Tribunal dated 24.11.2021 is correct and that the 1st Respondent will act as per the Impugned Order of the Tribunal because of the fact that the CoC meeting is to take place on 01.05.2021 12.00 Noon and that the voting will be done and the result of the decision will be conveyed to the Tribunal on 03.05.2021. 21. The Learned Counsel for the 3rd Respondent/Bank contends that the 3rd Respondent/Bank had funded money to the Corporate Debtor and balance of ₹ 36 Crores and odd and that CIRP was not in place at the time of funding of money and in fact, the 3rd Respondent/Bank should be included as a Financial Creditor . Furthermore, the interest of 3rd Respondent/Bank is Paramount and therefore it is to be included as Financial Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Professional has no Adjudicatory Power under the I B Code, 2016 and further that when once the Committee of Creditors is/was formed, the Resolution Professional cannot change the Committee of Creditors . Suffice it for this Tribunal to make a pertinent mention that the Resolution Professional/1st Respondent cannot constitute a Committee of Creditors afresh, in negation of the earlier constituted Committee of Creditors . 29. Be that as if may, in the light of foregoings, and also this Tribunal on going through the Impugned Order dated 22.04.2021 in I.A./361/CHE/2021 in M.A.6/2021 in CO/IB/CHE/597 of 2017 passed by the Adjudicating Authority comes to a consequent conclusion that the observation made inter-alia to the affair that CoC constituted presently by the IRP/RP in derogation of the order passed by it shall stands suspended and shall not exercise any of the powers as provided under the Provisions of IBC, 2016 and the directions issued to the IRP/RP to comply with the directions therein within a period of 10 days from the date of the order and to report before it about the outcome of the CoC meeting required to be called and convened are free from legal infirm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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