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TMI Blog2022 (10) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... on 7 of Insolvency and Bankruptcy Code, 2016 (in short 'Code') against the Corporate Debtor which was admitted on 29.03.2019 and the Appellant was appointed as the Interim Resolution Professional (in short 'IRP') to conduct the Corporate Insolvency Resolution Process (in short 'CIRP') of the Corporate Debtor. There was an agreement between the Corporate Debtor and the Respondent (Amar Universal Pvt. Ltd.) of lease dated 07.08.2015 in respect of RCC Industrial Shed admeasuring 39,100 sq. ft. and open space of Plot No. D-42 in TTC Industrial Area, MIDC, Sanpada, Navi Mumbai (hereinafter referred to as 'the said premise') for a period of five years starting from 01.09.2015 to 31.08.2020 for sum of Rs. 13,68,500/- per month. The Corporate Debtor deposited an amount of Rs. 82,11,000/- as security with the Respondent. The Respondent filed its claim to the RP (Appellant) for a sum of Rs. 2,30,92,536/- on 04.06.2019 and also filed a Miscellaneous Application No. 2319 of 2019 in CP (IB)-4301 of 2018 before the Adjudicating Authority for acceptance of the amount claimed in Form-B dated 04.06.2019. The said application was allowed on 16.10.2019 with the following observations: "13. The Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceive the license fee but also, he has to right to receive the possession of the said premises. The tenancy rights automatically get terminated, the moment default in payment of rent is committed. 19. Hence, this Miscellaneous Application is allowed with cost, and the Resolution Professional is directed to hand over of the possession of the said premises forthwith to the Applicant and pay the claim amount as raised by the Applicant in his claim within a week from the date of this order. 20. Accordingly based on the above discussion, this Application is allowed with cost of Rs. 1,00,000/- to be paid by the Resolution Professional to the Applicant within a week from the date of this order." 3. Being aggrieved against the aforesaid order, the Appellant filed an appeal before this Tribunal bearing CA (AT) (Ins) No. 1324 of 2019. However, before the aforesaid appeal could have been decided in one way or other, a Contempt Petition was preferred by Respondent for alleged non-compliance of the order dated 16.10.2019, which came up for hearing before the Adjudicating Authority on 11.11.2019, in which the Adjudicating Authority passed the order "RP is directed to personally present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any Operational Creditor or other Creditors. Therefore, the Direction at para 19 should be read as "pay the claim amount as raised by the Applicant for current period after initiation of the Corporate Insolvency Resolution Process". 10. The Resolution Professional will determine the claim of the 1st Respondent and communicate the same to the 1st Respondent and may approach the 1st Respondent - 'Amar Universal Private Limited' for renegotiation and settlement of any grievance in terms of earlier agreement. 'Amar Universal Private Limited' in such case may reach new Terms of Settlement uninfluenced by the order passed by the Adjudicating Authority or this Appellate Tribunal. 11. For the reason aforesaid, the impugned order so far as it relates to imposition of cost of Rs.1 Lakh is set aside. The said order stands modified. The appeal stands disposed of with aforesaid observations and directions." 6. Thereafter on 25.11.2019 the Adjudicating Authority passed the following orders: "The matter had come up for compliance of the orders on 13.11.2019 wherein on the earlier occasion the Court directed the RP to be personally present. Initially when the matter was called and kept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the RP to mend his base and assist this bench in the interest of justice. List this matter on 18.12.2019 for further consideration." 7. And further on 18.12.2019, the Adjudicating Authority passed the order in M.A No. 3558 of 2019, which read as under:- "It has been brought to the knowledge of this bench that the RP has handed over the possession of the property to the owners of the premises and furnishes a compliance report of the same. Apart from that the RP is willing to make the payment only with regard to the due amount post CIRP period and further it has been interpreted from our orders that liability of the corporate debtor is only with regard to post CIRP and not from CIRP period. In view of the same we hereby clarify that the RP shall make the payment of entire amount due with regard to the rent after deducting any amount like GST etc. as per law." 8. The resume of the orders, which have been reproduced hereinabove, passed both by the Adjudicating Authority and this Tribunal is that in the order dated 16.10.2019 the Adjudicating Authority had observed that (i) the Respondent had filed the claim on 04.06.2018 but despite the expiry of 4 months since then the RP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIRP" (iv) the RP shall determine the claim of the Respondent and may approach it for renegotiation and settlement of any grievance in terms of earlier agreement (v) the impugned order was set aside in so far as the imposition of cost of Rs. 1 Lakh is concerned and rest of the order remained in fact. 11. In the order dated 25.11.2019 the following observations were made (i) the matter was called and kept aside for considerable time and RP did not attend the court (ii) at one point of time, the court was inclined to sent staff members to search the RP but it was reported that the RP do not incline to come inside because he was having some problems with his hand. (iii) when the court about to rise the RP appeared and submitted that the order has to be set aside (iv) the RP seems to be have his own personal interest in the whole. 12. In the order dated 18.12.2019 the following observations were made (i) the RP handed over the possession of the property to the owners of the premises and submitted a compliance report. It was clarified that the RP shall make the payment of entire amount due with regard to the rent after deducting any amount like GST etc. as per law. 13. Counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmission (After Notice)' on 14th February, 2020" 16. Thereafter, the orders were passed for the Corporate Debtor to remove its machines from the demised premises and the Corporate Debtor was taken over by the SRA. During the proceedings, it also transpired that earlier Counsel Ms. Udita Singh had requested for a discharge from the case while she was appearing as Counsel for the Appellant. She was asked to file the necessary application but the same was not filed and ultimately the application was filed by one Mr. Aniruth Purushotham to appear on behalf of the Appellant which was allowed on 19.09.2022. 17. Counsel for the Appellant has submitted that the Appellant has been proceeding in this case in accordance with law and the observations which are sought to be expunged are very harsh. It is also submitted that the Appellant was unwell as he had some injury in his hand, therefore, he could not appear before the Adjudicating Authority. 18. We have heard Counsel for the Appellant in this regard and perused the entire record. 19. It is worthwhile mention that the Adjudicating Authority has made strong observation against the act and conduct of the Appellant on 16.10.2019 which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there." 22. The very fact that there was no challenge by the Appellant to various observations made against him in the order dated 16.10.2019 and that he did not appear before the Adjudicating Authority on 13.11.2019 despite an order dated 11.11.2019 and was sitting outside the court room and staff of the court had requested him to appear and then appeared suddenly when adverse comments were recorded goes to speak about the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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