9911796707
TMI Blog2021 (10) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to get. It is accepted that all the recommendation of the IBBI, except towards the expenses incurred for the public announcement. Although the IBBI has rejected the claim of second public announcement, since the public announcement has been made and that has not been denied, hence it is approved/granted that the cost/expenses incurred towards the second public announcement too. The Corporate Debtor is directed to pay total amount of ₹ 6,38,470/- only towards his fee and other expenses, within a month from today - application disposed off. - I.A. No. 3976/2020 in (IB)-2584/ND/2019 - - - Dated:- 5-10-2021 - Abni Ranjan Kumar Sinha, Member (J) And L.N. Gupta, Member (T) For the Appellant : Shohit Chaudhary and Malak Bhatt, Advs. For the Respondents : Neeha Nagpal, Adv. ORDER Abni Ranjan Kumar Sinha, Member (J) I.A. 3436/2021 1. The present application is filed under Rule 11 of the National Company Law Tribunal Rules, 2016 (hereinafter referred to as the Rules ) seeking the following direction: Direct Respondent to release of a sum of ₹ 24,83,471 in favour of the Applicant immediately towards his professional fees and other e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted between financial creditor and corporate debtor was limited to bearing expenses for the Financial Creditor towards legal proceedings only. It did not cover CIRP expenses or costs incurred by the IRP in any manner. It is also alleged that the fee claimed by the applicant is unreasonable and high, without any rational justification. 4. The applicant has filed rejoinder to the reply and submitted: That the financial creditors vide email dated 11.11.2020, have also informed that the obligation to make payment of fees of the applicant is upon the Corporate Debtor. The email dated 11.11.2020, sent by the Financial Creditors to the Corporate Debtor has been placed at page 69 of the rejoinder. That it is pertinent to mention that the Consent Form dated 02.03.2019, as given by the Financial Creditor to the Applicant, clearly states that the proposed fee of the IRP would be ₹ 11,00,000/- per month, until the Constitution of the Committee of Creditors. That the CIRP has been conducted from March, 2020 to August, 2020 and in terms of the above, the IRP would be entitled to a minimum fee of ₹ 66,00,000/-, however, the Applicant is seeking dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed by the Advocate was limited for a period of two months only. 6. The applicant has filed rejoinder to the aforementioned reply/report of IBBI and submitted that: As per audited financial statement for the year 2018-19 of the Corporate Debtor, the remuneration of Mr. Sunil Kumar Gupta (CFO) has been stated to be ₹ 28,35,536/- for the year 2018-19, i.e. ₹ 2,36,294/- per month. Since, the responsibilities of IRP are more than CFO, hence the fees proposed by the Applicant at the rate of ₹ 3,00,000/- per month is reasonable and appropriate. The recommendations made by the members of the Expert Committee themselves is contradictory to the professional fees being charged themselves in the assignments undertaken by them. As per the details in the report, in the CIRP of Ess Dee Aluminium Ltd., Ms. Deepika Bhugra Prasad, had charged approximately Rupees Four Lakhs per month, where the claims were worth ₹ 401 Crores. In comparison, in the impugned CIRP of the present Corporate Debtor, the claims were approximately worth ₹ 1255 Crores. Using the same as the basis, the professional fees of the Applicant should be more than ₹ 4 Lakhs per m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority to fix the fee of the IRP and in pursuance of that, the present application is filed. He further submitted that a report was called for from the IBBI. The IBBI has submitted a report, which is misconceived and without any basis, in fact or law. He further submitted that the IBBI has not reasoned while computing the fee for the IRP. He further submitted that IRP has claimed the fee in terms of the agreement arrived between the parties. 9. On the other hand, the Learned Counsel appearing for the respondent/corporate debtor submitted that in terms of Regulation 33(3) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations), the applicant is to bear expenses incurred by the IRP, which shall then be reimbursed by the CoC. He further submitted that the Corporate Debtor is not liable to pay the fee and expenses. 10. He also placed the reliance upon the decision of the Hon'ble Supreme Court in Civil Appeal Number 4044/2020 in which the Hon'ble Supreme Court held that the direction is in the nature of costs of the proceedings under Section 7 of the IBC, which have been found to be unsustainable in law. The respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses, which shall be reimbursed by the Committee (COC) to the extent it ratifies. 15. Here in the case in hand, admittedly, there was no CoC constituted, therefore, we had directed the IBBI to examine the fee and expenses claimed by the applicant, which in its report has stated the admissible fee and expenses, which the applicant is entitled to get. At the cost of repetition, we would like to refer to the relevant portion of the report dated 04.08.2021 submitted by IBBI, which is as follows- The committee found that the fees of ₹ 17,70,000/- as claimed by applicant is unreasonable. The committee considered that the activities performed by applicant on a limited scale, a fee of ₹ 2,00,000/- (calculated at ₹ 40,000/- per month) may be considered as reasonable. The committee observed that applicant had made two announcements. First public announcement made in March, 2020 at cost of ₹ 47,074/-, which covered 5 cities and 10 editions and second in April 2020 (at the cost of ₹ 48,646/-) covering 1 city and 2 editions. The committee did not find cost incurred towards second public announcement as acceptable as the same was not necessary g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Towards total fee, ₹ 2,00,000/- (calculated at the rate of ₹ 40,000/- per month); 2. Towards legal retainership - ₹ 3,00,000/- 3. Towards other expenses - ₹ 42750/-; and 4. In addition to ₹ 47074 for first public announcement, ₹ 48646/- for second Public announcement - (Total ₹ 47074 + 48646 = ₹ 95,720/- 5. Accordingly, we hold that the IRP is entitled to receive a total amount of ₹ 6,38,470/- (Rs. Six lakh thirty eight thousand four hundred seventy) only towards his fee and other expenses. 6. So far as the responsibility to pay the cost is concerned, since, the CIRP is terminated and there is no COC. We also observe, no specific direction has been given by the Hon'ble NCLAT hence, in our considered view the aforesaid amount will be paid by the Corporate Debtor and not by the applicant. 20. Accordingly, we direct the Corporate Debtor to pay total amount of ₹ 6,38,470/- (Rs. Six lakh thirty eight thousand four hundred seventy) only towards his fee and other expenses, within a month from today. 21. With this, the present IA stands disposed of. - - TaxTMI - TMITax - Insolvency & Bankru ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
