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TMI Blog2022 (9) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... essional and other expenses approved by CoC. HELD THAT:- A conjoint reading of Regulation 25A, 26 and 27 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and Regulation 31 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the expenses incurred under the different heads covered by Regulation 31 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 shall be paid by the creditors - In the instant case, the cost incurred by erstwhile RP and remuneration payable to him was approved by CoC in the CoC meetings, the total amount payable is Rs. 16,09,402/-, thus, the legal heirs of deceased RP are entitled to claim the remuneration payable to erstwhile RP and cost incurred by him, approved in CoC meetings. One of the major contentions of the Appellant herein is that the Appellant is having only 25.54% voting share and liable to pay its share of costs. As per provisions of the Act, the Respondent before the Adjudicating Authority Appellant herein, the creditors have to bear the cost of resolution process and remuneration payable to the Resolution Professional in proportionate to voting share, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be compelled to pay half of the share of remuneration and expenses and that he is not liable to pay the legal expenses which was not approved by the CoC and agreed to pay the fee payable to Resolution Professional and other expenses approved by CoC. 3. The Adjudicating Authority passed the order after recording contentions and mostly on the submission made by Ms. Anju Jain that fee payable to the legal heirs of the deceased Resolution Professional was approved by National Company Law Appellate Tribunal (hereinafter referred as 'NCLAT') without recording independent reason. The Respondent before the Adjudicating Authority Appellant herein questioning the same on the ground that no such order of approval of the remuneration payable to the legal heirs of deceased Resolution Professional was passed by the NCLAT and that the Appellant is liable to pay remuneration and expenses approved by CoC, proportionate to his voting right of 25.54%. Apart from that the fee payable to advocate is not approved by CoC thereby not liable to pay the fee allegedly paid by RP to advocate, requested to pass an appropriate order. 4. Whereas, the Learned Senior Counsel Mr. Virender Ganda submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the date of the first meeting total up to Rs.3,60,177/-. He further informed the members that the IRP has received Rs.2,00,000 from the applicant M/s Unimax International in accordance with the order of the Hon'ble NCLT dated 30.09.2019 which needs to be reimbursed to him by the IRP upon approval of the expenses by the Committee and receipt of funds by the IRP. The Chairman requested the members to ratify the said expenses. The members after considering the same ratified the expenses unanimously." 7. In the 2nd CoC meeting dated 15.02.2020 the remuneration and expenses incurred by the Resolution Professional till date of meeting was shown as item No. 6 and approved the same is extracted hereunder: "Item - 06 To ratify and approve the remuneration and expenses incurred by the Resolution Professional till the date of the meeting. The Chairman placed before the members a list of expenses incurred from the date of appointment first meeting of the Committee of Creditors till the date of second meeting of the Committee of Creditors, the details of which is as under: Sr. No. Particulars Amount (Rs) 1. Fees of Resolution Professional from 01.11.2019 till the date of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly) (Rs. 3,60,177/- + Rs. 7,33,494/- + Rs.5,15,736/-), approved in the CoC meetings held on viz., 1st, 2nd and 4th as shown in the earlier paragraphs. 10. Respondent before the Adjudicating Authority and the Appellant herein is bound to pay the expenses and remuneration approved by CoC in terms of judgment of this Tribunal in State Bank of India Vs. SKC Retails Ltd Through IRP & Anr. in Company Appeal (AT) (Insolvency) No. 08 & 43 of 2018 at Para No.10 which is to the following effect: "10. As per Regulation 33, the applicant means the person who files the application under Section 7 or 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "I&B Code") who generally proposes the name of the 'interim resolution professional'. Such applicant negotiates the fee to be charged and paid to the interim resolution professional. As per the provision aforesaid, the Adjudicating Authority is required to fix the expenses where the applicant has not fixed expenses under sub-regulation (1) of Regulation 33. In such case, the applicant, who has filed the application under Section 7 or 9 of the I & B Code, is required to bear the expenses which is to be reimbursed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to claim the remuneration payable to erstwhile RP and cost incurred by him, approved in CoC meetings. 14. One of the major contentions of the Appellant herein is that the Appellant is having only 25.54% voting share and liable to pay its share of costs. As per provisions of the Act, the Respondent before the Adjudicating Authority Appellant herein, the creditors have to bear the cost of resolution process and remuneration payable to the Resolution Professional in proportionate to voting share, but the Adjudicating Authority directed the creditors to pay 50% of the cost payable to erstwhile RP. Therefore, the direction to the extent of payment of remuneration equally by the creditors is contrary to the provisions of 'IBC' and relevant Regulations. 15. During the argument, the Learned Counsel for the Appellant herein, agreed to pay the cost and remuneration approved in CoC meeting proportionate to its voting share while denying liability to pay legal expenses paid to the advocate. Admittedly, the fee payable to advocate was not approved or ratified to CoC meetings. In view of the judgment in Bharat Hotels Ltd. Vs. Tapan Chakraborty in Company Appeal (AT) (Insolvency) No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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