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TMI Blog2022 (12) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1345/2021 for seeking consideration of IA 3927/2020. "a. Direct the Respondents to refund Rs. 12,30,457/- to the Corporate Debtor with interest @18% p.a. being the amounts illegally retained by them and which amounts were given during moratorium period for supply of goods/components. b. Direct that the Respondent is liable to be punished for contravention of Section 14, 31 and Section 74 of IBC for siphoning off proceeds of Corporate Debtor in contravention of Moratorium imposed by this Hon'ble Tribunal. c. Pass such other or further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the matter and in the interest of justice." After hearing the parties, the Tribunal dismissed the aforesaid I.As holding that there is no violation by RP of any of the provisions contained under Section 14, 31 & 74 of IBC and the Respondents are not required to refund the amount i.e. Rs. 12,30,457/- to the Corporate Debtor. 2. The facts giving rise to this Appeal are as follows: i) The Appellants herein being the Corporate Debtor and the Resolution Applicant in the proceedings before the Tribunal had preferred the aforesaid I.As as a joint application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st during the CIRP proceedings during the moratorium period. The Respondents are violating the mandate of law claiming dues from Corporate Debtor when the Appellant Corporate Debtor cannot be made liable to pay any dues for the period prior to imposition of moratorium period when the claims have been not filed/ not admitted under the approved resolution plan as per Section 14 & 31 of the Code. 4. It is further submitted that the Appellants relying on judgment passed by the Hon'ble Supreme Court in the case of 'Ghanashyam Mishra and Sons Private Limited through Authorized Signatory Vs. Edelweiss Asset Reconstruction Company Limited through the Director & Ors.' reported in (2021) 9 SCC 657 held that: "............. 86. As discussed hereinabove, one of the principal objects of I&B Code is, providing for revival of the Corporate Debtor and to make it a going concern. I&B Code is a complete Code in itself. Upon admission of petition under Section 7, there are various important duties and functions entrusted to RP and CoC. RP is required to issue a publication inviting claims from all the stakeholders. He is required to collate the said information and submit necessary d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essful resolution applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor." 6. It is further submitted that it is evident from the fact that the Respondent has violated the clear mandate of Section 14 of the Code by retaining amounts of the Corporate Debtor given in trust to them during the moratorium period and by not returning them even after approval of the final resolution plan. Based on these submissions the impugned order is fit to be set aside and the Appeal be allowed. Submissions on behalf of the Respondent 7. The Ld. Counsel for the Respondent during the course of argument and in his reply affidavit along with written submissions submitted that the Appellant No. 1 filed an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functus officio on 02.04.2019. Therefore, in this case, at the time of filing of the application bearing IA No. 3927 of 2020 on 14.09.2020, there was on insolvency petition, which was pending before the Adjudicating Authority and as such, the Adjudicating Authority did not have jurisdiction to entertain the same. The aspect has also been duly dealt by the Adjudicating Authority in its impugned order at paragraphs no. 30, 31 and 32. 9. It is further submitted that the Adjudicating Authority is not even a Civil Court which has jurisdiction by virtue of Section 9 of the Code of Civil Procedure to try all suits of a civil nature. The Tribunal can exercise only such powers within the contours of jurisdiction as prescribed by the statute that it is required to administer. The Code clearly defines the circumstances in which the jurisdiction of the Adjudicating Authority can be invoked and who can invoke the same. In this case, the facts and circumstances do not fall under the scope of the Code and the issue involved herein requires trail and examination of fats and circumstances which can only be adjudicated upon by a civil court. The Ld. Counsel for the Respondent in support of his sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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