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TMI Blog2021 (3) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/10514) shall no longer act as the Interim Resolution Professional in the Corporate Insolvency Resolution Process of Shree Sai Prakash Alloys Pvt. Ltd. (iv) Direct Respondent No. 1 or Respondent No. 2, as this Hon'ble Tribunal may deem fit, to pay to Mr. Anil Agarwal the CIRP cost amounting to Rs. 17,81,160/- (Rupees Seventeen lakh eighty one thousand one hundred sixty only) 3. The Learned Counsels appearing for the Applicant/IRP has requested for passing order regarding payment of his fees. It is informed during the course of the hearing that the IRP has handed over back the Management to the Suspended Management of the Respondent Company. However, it is observed from the documents submitted/made available and the IA filed that- 4. On 21.05.2018, the Respondent Punjab National Bank filed applications under Section 7 of IBC before this Bench against the following three Companies: (i) Shree Sai Prakash Alloys Pvt. Ltd. [CPIB No. 24/GB/2019] (ii) Shree Sai Rolling Mills (India) Pvt. Ltd. [CPIB No. 22/GB/2019] (iii) Shree Sai Smelters (India) Pvt. Ltd. [CPIB No. 23/GB/2019] with a claim of Rs. 84,46,17,450.68 (Rupees Eighty Four Crores Forty Six lacs Seventeen thous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor. 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 issue cheques only after authorization of the Interim Resolution Professional. The Banks having accounts of the 'Corporate Debtor' will also cooperate with the 'Insolvency Resolution Professional' to ensure compliance of this order." 3. Part of the Final Order dated 18.06.2020 of Hon'ble NCLAT is reproduced below: "18. In the Impugned Order, the adjudicating authority has mentioned that the Corporate Debtor gained so much time on the pretext of settlement and also by filing Writ Petition before the Hon'ble High Court of Meghalaya at Shillong and it is high time to put an end to this matter. 19. It is undisputed that by the order of the Hon'ble High Court dated 19th August 2019 parties were directed to maintain status quo till 26th August 2019. However, the Adjudicating Authority, without taking the status quo of the High Court passed the Order of Admission on 23rd August 2019. ... 24. It is on record that on the day petition was admitted there was sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of renewal of OTS, the said opportunity may be utilised by the parties in right earnest, of course in true letter and spirit. The parties are directed to appear before the Adjudicating Authority (NCLT, Guwahati Bench) on dated 29th June 2020. No order as to costs." 4. After the final order of the Hon'ble NCLAT, the CDs have filed three IAs - IA Nos. 39, 40 & 41 of 2020. The matter is not listed/taken up on 29.06.2020 due to shutdown/lockdown for Covid Pandemic. 5. 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 submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the application respectively. 10. It is made clear that this Court is not a Recovery Court and in the name of OTS/acceptance or non-acceptance of OTS, negotiation/failure of commitment/further negotiation, CIRP period has crossed 537 days. In the absence of the clarify from the FC, CD and IRP relating to their stand on the application filed under Section 7 of the IBC, 2016, CIRP after the Judgment of the Hon'ble NCLAT, Writs filed before the Hon'ble High Court and the Hon'ble Supreme Court this Bench is not able to proceed further/dispose of the matter as the application is filed under IBC and the disposal 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". ORDER 12. Now, it is essential for this Bench to know the stand of the FC and the CD relating to the Application filed under Section 7 of IBC, 2016, CIRP of the CD and the outcome of the Writ filed before the Hon'ble High Court and SLP filed before the Hon'ble Supreme Court, before passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he committee of creditors. The Applicant on 11.10.2019 emailed to the erstwhile management of the Corporate Debtor requesting them to provide the relevant documents and details as required to understand the business affairs of the Corporate Debtor. 13. That since the matter was pending before the Hon'ble NCLAT the Respondent No. 2 erstwhile management was least cooperating with the Applicant in providing the information as sought and even Applicant could not be able to perform the duties which he could be able to do so as per the Code, 2016 due to the stay granted by the Hon'ble NCLAT. 18. That on 18.06.2020 the Hon'ble NCLAT had passed the Final Order/judgment with regard to the Appeal filed by the Promoter/Suspended Directors of the Corporate Debtor. Vide judgment dated 18.06.2020 the Hon'ble NCLAT had allowed the Appeal and set aside the impugned order i.e. order of admission or order of commencement of CIRP. The Hon'ble NCLAT while allowing the Appeal filed by the promoter/suspended Director had remanded back the matter to this Hon'ble Tribunal for passing of fresh order. 19. That it is at due procedure of the Department of Justice of the Country/C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 23. That the Applicant is only concerned about the operative part 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 Applicants duties has 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, in compliance of the order dated 18.06.2020 passed by Hon'ble NCLAT, the Applicant had stopped controlling the affairs of the Corporate Debtors by not denying/objecting the letter dated 20.06.2020 sent by the Respondent No. 2/erstwhile management. 24. That the Applicant had not withdrawn its consent from being an IRP for the Corporate Debtors. Since the order of admission was set aside, the Applicant deemed fit to release the Corporate Debtor and to handover the control of the Corporate Debtors to the main management. 25. That the Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... includes the fees of the Applicant for controlling the affairs of all three group companies. 29. That the Applicant had not entered into any agreement with the Financial Creditor and the management of the Corporate Debtor towards the fees of the Interim Resolution Professional. The Applicant had charged his fees as per the verbal discussion and understanding with the Respondent No. 1 Bank. 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 light of the Order dated 20.01.2021 passed by the Hon'ble Supreme Court in the matter of Rajkumar Brothers and Production Private Limited vs. Harish Amilineni shareholder and erstwhile Director of Amilineni Technologies Private Limited and Anr. (Civil Appeal No. 4044 of 2020. In this matter the Hon'ble NCLAT while dismissing the order of the initiation of the CIRP had directed the Creditor who initiated the CIRP proceedings by fling Application to pay the CIRP Cost and fees of the IRP. The creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents/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 Civil Appeal mentioned above before the Hon'ble Supreme Court. 8. That the financial creditor has filed this affidavit-in-reply bona fide and to secure t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the IRP in this CDs. 15.2. On the other hand, when the Application is filed under Section 7 of IBC, the IRP is going to take the charge of a CD, there is no agreement/understanding between the FC and the IRP with regard to the fees of IRP and the IAs are filed by the IRP before this Bench to direct the FC/CD to pay his fees. Everything is done verbally. It is not expected and not appreciated in the case of IBC Proceedings under Section 7 of the IBC where time matters. ORDER 16. Since the Management of all three CDs have been handed over by the IRP on 20.06.2020 and the CoC has not been formed, the Applicant here (PNB) is to bear the actual CIRP cost, excluding the fees of the IRP, incurred between 23.08.2019 - 20.06.2020. Both the FC and the IRP are at liberty to settle the matter of IRP fees before the date, these IAs are taken up by this Bench, for examining the prayers other than the issue of IRP fees. 17. The Hon'ble NCLAT has set aside the impugned order of the NCLT and remanded back to this Bench to pass an order afresh after providing an opportunity to the opposite party. The CIRP is set aside but the Applications filed by the FC under Section 7 of the IBC are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther deployed. On the other hand, CDs cannot keep the IBC matters postponed in the name of OTS offer, implementation of offers and filing of IAs etc. It is also a fact that there is a very little scope of negotiations, further negotiations, filing of IAs etc. in the IBC proceedings. Hence, defeat of the objectives of the IBC is being clearly visible in these three Applications filed under Section 7 of the IBC. 19. The objectives of the IBC shall not be allowed to be defeated. Hence, the FC is hereby directed to take a clear stand whether to pursue these three applications or not. 20. Prayer made by the FC in the Affidavit-in-reply filed on 10.03.2021 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. Hence, the FC is hereby permitted to file additional reply/addendum as prayed for. 21. CD is directed to file the last order of the Hon'ble High Court in the Writ Petition (C) No. 6029 of 2019 filed on behalf of all three ..... X X X X Extracts X X X X X X X X Extracts X X X X
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