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TMI Blog2021 (10) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent has made a wrong and fallacious interpretation of section 14(2A) when its says that this section is not applicable to the present case - The Bench also found that the refusal of the Respondent to deny access to the RP to the Business record of the Corporate Debtor is in contrary to Section 18 and 25 of the Code - The Bench notes that the business record of the Company is an indelible right of the Resolution Professional and a contractual duty of the Respondent which it has has failed to perform. In view of this the Bench, the Bench is of the views and as pleaded by the Corporate Debtor that the Corporate is entitled for cost incurred by the Respondent under Section 235A of the Code. The Corporate Debtor pleaded that it had to continue to render establishment cost in several cities during the Covid period because of non-availability of data from the Respondents because of which it could not take a decision regarding release of properties taken on rent. Thus, as per the Corporate Debtor has resulted into an additional cost of about Rs. 6.22 crores. The Respondent is directed to continue providing its services to the Corporate Debtor as per the terms of the Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al for the Corporate Debtor Company as well as the RP for their functioning and also to assess the true Financial position of the Corporate Debtor Company. 5. The RP mentions that the Respondent Company has blocked the access of the RP to the Record Management Services by refusing to provide the RP the list of business records and information of the Company that are stored by it. Further, the Respondent has refused to provide Record Retrieval Services until the Corporate Debtor Company makes payment as 100% advance. The above arrangement of Corporate Debtor and the Respondent is as a result of Agreement dated 15.01.2007 where at annexure-3 to the Agreement, the payment procedure has been prescribed. As per the payment procedure prescribed under the Agreement the invoices for services rendered by the Respondent in a calendar month for each location would have to be submitted to the Corporate Debtor before the 7th day of the next calendar month and the Corporate Debtor was liable to make payment of the invoices within 15 days of their receipt by a crossed cheque payable at Mumbai. 6. The CIRP of the Corporate Debtor Company commenced on 22.10.2019 and IRP of the Corporate Debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t s refusal to provide its Record Retrieval Services to the RP when the payment has been fully made as per the terms of the Agreement, is totally violation of Section 14(2)(a) of the Code wherein it was incumbent upon the Respondent to provide this critical service of Record Management and Record Retrieval to the RP/Corporate Debtor for the CIRP period when payment to that effect has been made in full as per the terms of the Agreement. In this regard, this Bench would like to draw the attention to Section 14 (2)(A) of the Code which reads as under: Section 14(2)(A) 14 (2A) Where the interim resolution professional or resolution professional, as the case may be, considers the supply of goods or services critical to protect and preserve the value of the corporate debtor and manage the operations of such corporate debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such corporate debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified 11. It is therefore clear to the Bench that the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the corporate debtor, including the business records of the corporate debtor; (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate debtor in judicial, quasi-judicial or arbitration proceedings; 13. The Bench notes that the business record of the Company is an indelible right of the Resolution Professional and a contractual duty of the Respondent which it has has failed to perform. In view of this the Bench, the Bench is of the views and as pleaded by the Corporate Debtor that the Corporate is entitled for cost incurred by the Respondent under Section 235A of the Code. The relevel portion of the Section 235A of the code reads as under: 235A. Punishment where no specific penalty or punishment is provided:- If any person contravenes any of the provisions of this Code or the rules or regulations made thereunder for which no penalty or punishment is provided in this Code, such person shall be punishable with fine which shall not be less than one lakh rupees but which may extend to two crore rupees 14. The Corporate Debtor pleaded that it had to continue to render establishment cost in severa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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