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TMI Blog2021 (5) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... er presenting the order dated 18/06/2020 of Hon ble NCLAT on 20/06/2020 - It is also taken on record that the matter relating to the payment of fees and other CIRP cost have been settled amicably between the IRP and the FC. However, we do not appreciate the issue relating to the IRP fees / CIRP cost is brought before this Bench for adjudication, when the Application is filed under Section 7 of IBC and IRP is appointed only at the request of the FC and with the consent letter of the IRP. Application disposed off - IA No.08 of 2021 IN C.P. (IB) No.22/GB/2019 - - - Dated:- 5-5-2021 - Hon ble Shri H. V. Subba Rao, Member (J) And Hon ble Shri Prasanta Kumar Mohanty, Member (T) MR. S. MAKKAR ADVOCATE PETITIONER NONE RESPONDENTS ORDER [ Per: Mr. Prasanta Kumar Mohanty, Member (T) ] This IA is filed by Shri Anil Agarwal, Interim Resolution Professional (IRP) seeking the following reliefs: (i) Allow the present petition; (ii) Hold that the Corporate Insolvency Resolution Process of Shree Sai Rolling Mills (India) Pvt. Ltd. [CP (IB) No.22/GB/2019] stands dismissed; (iii) Hold that Mr. Anil Agarwal (IBBI/IPA-001/IP-P00270/2017- 18/10514) shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders have been passed on 23rd August, 2019 admitting the Section 7 Applications under Insolvency and Bankruptcy Code, 2016. The Counsel states that the Appellants were ready to settle the claims of the banks with regard to these companies and had even given OTS proposals which were under consideration of the Bank but at the last moment, the bank refused to accept the same during pendency of the Applications before the Adjudicating Authority. The Counsel states that the Appellants are still ready to settle the matters with the bank. Post the case for admission (after Notice) on 11th November, 2019. Meanwhile, IRP will not constitute COC, till next date. The IRP/ Resolution Professional will ensure that the company remains going concern and the manufacturing and production of the company do not suffer; payment of wages to the employees / workmen are made on time and if any material is supplied during Corporate Resolution Process , the payment must be paid to the supplier / creditor. The Insolvency Resolution Professional will also take aid of (suspended) Board of Directors, paid Directors and employees. The person who is authorised to sign the bank cheques may iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The matter is not listed/taken up on 29.06.2020 due to shutdown/lockdown for Covid Pandemic. 7. On 07.10.2020, this Bench has taken up the IA Nos. 39, 40 and 41 of 2020 through video conference and passed the following order: Mr. K. K. Nandi, learned counsel for the Respondent/FC is present. None present for the IA/CD. 3. Mr. K. K. Nandi, learned counsel for the Respondent/FC submits that the Financial Creditor has filed an SLP before the Hon ble Supreme Court against the order of Hon ble NCLAT dated 18.06.2020 wherein the Hon ble NCLAT had remanded back the matter to the Adjudicating Authority, Guwahati Bench to pass an order afresh, after providing an opportunity to the party in the light of the directions given in the order of the NCLAT dated 18.06.2020. 4. The learned counsel further submits that presently the matter is pending before the Hon ble Supreme Court but no date for hearing has been fixed as yet. Therefore, he prays for an adjournment till 13.11.2020. 7. IA Nos.7, 8 and 9 of 2021 listed before this Bench were taken up on 10.02.2021 and this Bench observed certain points and passed the following order. Part of the order is reproduced bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the matter needs to be done within the stipulated time. 11. In the meantime, the IRP has filed this petition with a prayer to hold that the CIRP stands dismissed and for payment of his dues when the matter is pending before the Hon ble Supreme Court . 12.1 Senior Official of the FC, who is well conversant / can clarify the stand of the FC relating to the above points, is to be present in person on the next date of hearing, along with his Counsel, if any. 12.2 The Main Promoter Director / Suspended Management of the CD who can clarify the related points is to be present in person along with their Counsel, if any. 12.3 IRP is to be present in person. 13. The IRP is directed to file an Affidavit giving details of the assignment as IRP for the CD, undertaken right from the day i.e. 23.08.2019 till 09.02.2021, under whose direction, he has reportedly handed over the Management back to the CD, the details of expenses of ₹ 17,81,160/- (Rupees Seventeen lakh eighty one thousand one hundred sixty) as CIRP cost to be reimbursed, enclosing the copy of the agreements between him and the Petitioner FC and the Respondent CD, if any, towards his fees and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of the IRP begins from the date of initiation of CIRP process. As per the order of initiation of CIRP the Applicant had initiated performing its duties as per the Code, 2016. As stated hereinabove the Applicant had invited claims from the creditors by making public announcement and the Applicant was about to constitute the committee of creditors but due to the order of stay passed by the Hon ble NCLAT it cannot be done. Therefore, the Applicant is bound by the order of Hon ble NCLAT. 21. That the order dated 18.06.2020 was brought in the notice of the Applicant by the Respondent No.2 on 20.06.2020 vide email and letter requesting to the Applicant for carrying out the necessary formalities towards handing over the control of all three group companies. A copy of the email dated 20.06.2020 sent by the erstwhile management to the Applicant is annexed herewith and marked as Annexure A9 30. That it is prayed before this Hon ble Tribunal that to allow the present Application and direct either the Respondent No.1 to contribute towards the CIRP cost incurred by the Applicant from the date of initiation of CIRP till the passing of Final orders by the Hon ble NCLAT in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. The above mentioned cases were taken up together by the Hon ble Apex Court on 16.10.2020 and vide Order dated 16.10.2020 the Hon ble Apex Court directed the respondents/ corporate debtor to file statement giving the schedule of payment of loan. Copy of the Order dated 16.10.2020 is annexed hereto and marked as Annexure-1. 4. The above mentioned appeals was listed before the Hon ble Apex Court on 01.03.2021 and the Hon ble Apex Court vide order dated 01.03.2021 passed order to list the case on 26.03.2021. Copy of the order dated 01.03.2021 is annexed hereto and marked as Annexure II. 5. The respondent/corporate debtor has served upon the financial creditor payment schedule as per direction of the Hon ble Apex Court mentioned above. 6. That the financial creditor have not made any statements and averments in so far as the reliefs sought for by the corporate debtor in the application under Rule 11 of the NCLT Rules and craves leave of this Hon ble Tribunal to file additional reply / addendum if so required before this Hon ble Tribunal. 7. The financial creditor has filed this affidavit-in-reply to bring on record of this Hon ble Tribunal the pendency of Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble NCLAT. The FC has stated in its Affidavit-in-reply filed on 10.03.2021 before this Bench that the Financial Creditor has not made any statements and averments in so far as the reliefs sought for by the corporate debtor in the application under Rule 11 of the NCLT Rules and craves leave of this Hon ble Tribunal to file additional reply / addendum if so required before this Hon ble Tribunal. Since the FC has preferred three appeals before the Hon ble Apex Court against the order of the Hon ble NCLAT, the three IAs i.e. IA Nos. 39, 40 and 41 of 2020 are not taken up. 18. The Original Applications under Section 7 of IBC were filed on 21.05.2018 and in the meantime 1036 days have since passed from the date of filing of the Petitions. As per Section 7 (A) of the IBC, an Application is required to be admitted or rejected within fourteen days of the receipt of the application. Hon ble Supreme Court has held in the matter of COC of Essar Steel India Ltd. Vs Satish Kumar Gupta [Civil Appeal No.8766 67/2019] that the CIRP must ordinarily be completed within the time limit of 330 days from the Insolvency Commencement Date unless extended by the Court on sufficient cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. Both the FC and the CDs are directed to file the copy of the order of the Hon ble Supreme Court, if any, before the next date fixed. ORDER 3. Heard the IRP in person, the Learned Counsel for the IRP, the Learned Counsels of the FC and the CDs at length. The IRP submits that the matter relating to his fees, CIRP cost have been amicably settled with the FC. On the other hand, the Learned Counsel for the FC has confirmed the submission of the IRP. 4. During the proceedings, the IRP and his Counsel have submitted that the Applicant is only concerned about the operative part of the order of Hon ble NCLAT which annul the order dated 23.08.2019 passed by this Hon ble Tribunal vide which the CIRP was commenced and the Applicant was appointed as Interim Resolution Professional. As per the best understanding of the Applicant and normal reading of the judgment, the Hon ble NCLAT had discharged the Corporate Debtors from the ongoing CIRP against all three group companies. Vide the same order, the Applicant s duties have also been discharged and the Applicant is no longer the officer of the Court as appointed by this Hon ble Tribunal vide order dated 23.08.2019. Therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by the Hon ble NCLAT and have no other motive to seek such prayer. The Applicant had bona fide controlled the affairs of the Corporate Debtors. Since the Applicant is an officer appointed by the Court is also bound to follow orders passed by the Appellate Tribunal. Therefore, the Applicant while performing the duties as per the Code, 2016 had stopped controlling the business affairs of the corporate Debtor and had filed the present Application for the reimbursement of the CIRP cost which includes the fees of the Applicant for controlling the affairs of all three group companies. 10. It is observed that on receipt of order of the Hon ble NCLAT dated 18.06.2020, the IRP has handed over back the Management to the Suspended Management on 20.06.2020. Though he has handed over the Management on 20.06.2020, the IRP could not submit satisfactory reply to the clarifications sought by this Bench about the inordinate delay of six (6) months in filing these IA Nos. 7, 8 and 9/2021 after handing over the Management to the Suspended Management, with prayers to hold the CIRP stands dismissed and he is no longer working as the IRP for the CD. 11. The inordinate delay of more than ..... X X X X Extracts X X X X X X X X Extracts X X X X
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