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TMI Blog2022 (10) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... to the amounts payable to an employee for services rendered during the CIRP. In this connection, these expenses clearly fall within the definition of insolvency resolution process cost as defined in section 5(13)(c) of the IBC, 2016. The Resolution Professional is directed to make provisions for payment of salary and leave encashment after taking on record the necessary information from the applicant and as per his entitlement and modify the resolution plan to that extent with the approval of CoC. The Resolution Professional is further directed to report the above compliance at the time of consideration of the Resolution Plan - Application allowed. Seeking direction against respondent to pay car rental of Rs. 15,000/- per month/ per car or part thereof up to the date of delivery of the cars to the applicant for using the car for personal purposes - direction to respondent to hand over the custody of the cars belonging to corporate debtor to the Resolution Professional in view of provisions of Section 18 (f) read with Section 23(2) and read with Section 25(2)(a) of IBC, 2016 - HELD THAT:- Under the provisions of the Code, the Resolution Professional is clearly mandated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Respondents in IA No. 942/2020, 586/2020 :Mr. Manuj Nagrath, Advocate For the Respondents in IA No. 300/2021 :Dr. Rajansh Thukral, Advocate ORDER Per : Subrata Kumar Dash, Member (Technical) IA No.300/2020 In the present application, the applicant is seeking direction against Resolution Professional to release the amount due towards Gratuity, Leave Encashment and salary during the CIRP of the corporate debtor as the same does not form part of the liquidation estate of the corporate debtor. In the present matter, this Adjudicating Authority has admitted the petition i.e. CP (IB) No.174/Chd/CHD/2018 and initiated Corporate Insolvency Resolution Process(CIRP) in respect of the corporate debtor vide order dated 28.02.2019. 2) The brief facts submitted by the applicant in the instant application are as follows: 2.1 It is submitted that the applicant has worked in the corporate debtor as AGM Accounts and Finance for 7 years. The HR Department of the corporate debtor served the applicant a notice for termination of services vide email dated 19.04.2019. The applicant replied to the email of the respondent and requested full and final clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atuity to employees depends on their entitlement of Gratuity, subject to the fulfilment of the conditions laid down under the payment of Gratuity Act, 1972 and also on the availability of the fund in this regard. 3.4 It is further stated that Gratuity liability, if any, cannot be part of liquidation estate since only assets can be part of liquidation estate. The respondent contends that had there been any gratuity fund of the corporate debtor as contemplated u/s 36(4)(a)(iii) of IBC or section 4A of the Payment of Gratuity Act, 1972, only then the issue of inclusion or non-inclusion in liquidation estate would arise. In this case the corporate debtor has not created a fund for payment of gratuity. 4) We have heard the learned counsel for the applicant and respondent-Resolution Professional. 5) In the present case, the CIRP was initiated on 28.02.2019 and the applicant was terminated on 18.05.2019 after a decision in this regard taken by the CoC, subsequently an application was moved by applicant i.e.,CA No. 411/2019 before this Bench against the said termination, and the same was dismissed with liberty to the applicant to prefer any claim with regard to his employment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employees because the Liquidator has no domain to deal with the properties of the Corporate Debtor, which are not part of the liquidation estate. ( emphasis supplied) 8) In view of the aforementioned decision we hold that in the instant matter, the Resolution Professional cannot be directed to make payment of gratuity to the applicant as there is no gratuity fund created by the corporate debtor. As regards the salary and leave encashment during the period of CIRP, the same pertains to the amounts payable to an employee for services rendered during the CIRP. In this connection, these expenses clearly fall within the definition of insolvency resolution process cost as defined in section 5(13)(c) of the IBC, 2016. In this case,a reference is made to the decision of the Hon'ble Supreme Court in the case of Sunil Kumar Jain and others Vs. Sundaresh Bhatt and others (2022) ibclaw.in 23 SC holding that the Wages/Salaries of the Workmen/Employees for the period during CIRP can only be included in the CIRP costs if it is established that the IRP/Resolution Professional managed the operations of the Corporate Debtor as a going concern during the CIRP and that the concerned wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0965/2 dated 04.03.2022, whereby the following avermnents have been made: 3.1 It is submitted that the Toyota Innova having registration No. CH01AK0645 has already been handed over to the applicant-Resolution Professional and Ssangyong Rexton having registration No. CH01BC3341 is with suspended director of the company namely Mr. Sukhinder Singh and he has been performing various duties of a director and he has also been drawing salary from the company and the respondents are not liable to return the said vehicle to the company. Further, it is stated that the vehicle in question was not in a working condition and till date it is not in working condition and the respondent has never objected to the Resolution Professional to take possession vehicle in possession however the same is not taken due to non-working condition. 3.2 It is further submitted that the present application is not maintainable as recovery of rent, eviction of tenants are outside the domain of this Adjudicating Authority. For the above, reliance has been made on the decision of Hon ble NCLT Mumbai Bench in case titled as Asset Reconstruction Company (India) Limited V. Precision Fasteners Limited bearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution professional. (1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions, namely:- (a) take immediate custody and control of all the assets of the corporate debtor, including the business records of the corporate debtor; 7) Under the provisions of the Code, the Resolution Professional is clearly mandated to take possession and to preserve and protect the assets of the corporate debtor. In the present case, the two vehicles should have been in the custody of the Resolution Professional right after the initiation of the CIRP. Furthermore, the respondent s reliance on the decision of the Hon ble Supreme Court in the case of Embassy Property Developments Private Limited (supra) does not further his case. For the sake of clarity, the relevant part of the said decision is extracted below: If NCLT has been conferred with jurisdiction to decide all types of claims to property, of the corporate debtor, Section 18(F)(vi) would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the Respondent along with insurance, Registration documents and other tools and tackles and further direction to the Respondent to make payment of Rs.9,94,372/- as per calculation shown in Annexure A-8 with further directions to make payment of rent from 01-12-2020 up to the date of delivery of Refrigeration vehicle @ Rs.25,000/- per month plus GST (total Rs.29,500/- P.M) plus interest thereon @15% p.a. up to the date of payment. 2) In the instant application, the applicant is seeking possession of the above mentioned vehicle, the proof of ownership of the refrigerated vehicle as per the website of Government of India Vahan is in the name of corporate debtor, the same is attached as Annexure A-3 of the application. 3) The respondent has filed its reply vide Diary No. 01990/5 dated 03.03.2022, whereby the similar averments have been made as in above mentioned IA. No. 586/2020 and it is further stated that the present vehicle was not deliberately taken into possession by Resolution Professional since the same was not in working condition. The Resolution Professional has filed its rejoinder, whereby the submissions made in reply have been reiterated. 4) We have heard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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