9911796707
TMI Blog2023 (1) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case, the Adjudicating Authority being the appointing authority of IRP/RP was well within its jurisdiction to pass an order for removal of the RP particularly in a situation where the RP had not taken any steps to convene a meeting of the CoC for the purposes of removal of RP. The Adjudicating Authority with an object to implement the provisions of IBC in its letter and spirit has rightly exercised its inherent jurisdiction by way of passing order of removing the appellant as RP of the CD. This fact which is reflected on record is sufficient to draw an inference that the Appellant was proceeding contrary to the statutory provisions as contained in the IBC and also delaying the smooth conclusion of CIRP - there is no defect in the impugned order warranting interference by this Tribunal. On the contrary the conduct of the appellant/RP which was observed by the Adjudicating Authority and reflected so in the impugned order is sufficient enough to direct IBBI to conduct an inquiry regarding the role played by the RP in this matter. Appeal dismissed. - Company Appeal (AT) (Ins) No. 1443 of 2022 - - - Dated:- 10-1-2023 - [ Justice Rakesh Kumar ] Member ( Judicial ) And ( M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya, learned counsel appeared on advance notice on behalf of the sole respondent. However, when the appeal was taken up, Mr. P. Nagesh, Ld. Sr. Counsel assisted by Mr. Rajeshwar Singh, learned counsel tried to intervene on the plea that despite the fact that IA filed by Indiabull Housing vide IA No.3537/2022 was allowed by the same impugned order, the Indiabull Housing was not impleaded as party respondent. Similar stand was taken by Mr. Abhijeet Sinha, learned counsel that before the Adjudicating Authority, IIRF had filed IA NO.1304/2022 which was allowed by the same impugned order, however, to the reasons best known to the appellant, IIRF was also not impleaded as party respondent. Both learned counsel orally submitted that the appeal is prima facie required to be rejected on the ground of non-joinder of the necessary parties. After hearing the parties on 02.12.2022 order was reserved. 3. It is really peculiar that once three IAs which were filed by three distinct persons for removal of appellant as RP of CD were filed and allowed by the impugned order there was no reason not to implead all the applicants as party respondent in the present appeal. The appeal was required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The RP had not taken out an Expression of Interest (EOI) to gauge the interest of prospective resolution applicants. A further stand was taken by the applicant that majority of the CoC Members (with an aggregate voting shares of 69.86%) had lost faith in the functioning of the RP/appellant. This applicant further highlighted that SREI Equipment Finance Ltd vide IA No.2621/2021 has approached the Tribunal seeking removal of RP. 7. Similarly IA No.3537/2022 was filed by Indiabull Housing Finance Ltd for removal of the appellant/RP and to appoint in his place appropriate person as RP and further direct the newly appointed RP to reconstitute the CoC. It was pleaded by the applicant of IA No.3537/2022 that applicant Indiabull Housing was one of the principal financial creditors of the CD and the applicant had an outstanding claim of Rs.14018695476/- (Rupees Fourteen hundred one crore eighty six lakhs ninety five thousand four hundred seventy six only) alongwith TDS amount of Rs.121656404/- (Rupees Twelve crore sixteen lakh fifty six thousand four hundred four only) from CD. In terms of the order dated 20.10.2021 passed in IA No.925/2021 in CP(IB) No.494/2019 the applicant was awaiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senior counsel while assailing the impugned order has taken us to Page No.26 O i.e. finding recorded by the Adjudicating Authority and submits that there is error of record. He submits that the Adjudicating Authority has incorrectly interpreted order dated 17.11.2021 as passed by NCLAT. He submitted that NCLAT had never directed to reconstitute the CoC rather it directed that in the meanwhile CoC shall not take any further steps in the matter. He has placed photo copy of the order dated 17.11.2021 passed in Company Appeal (AT)(Ins) No.982/2021. He has further emphasized that the Adjudicating Authority has incorrectly relied on an order passed by NCLAT in Company Appeal (AT)(I) No.786/2020. He further submits that in any event the power was vested in the CoC to remove the RP, not the Adjudicating Authority was authorized to pass the order for removal of RP. He further submits that the application filed by the applicant/respondent was for removal of the RP was not maintainable, since the respondent was not having any locus to maintain application for removal of the RP . Mr. Chaudhury, learned senior counsel has further placed reliance on para 24 to 26 of the judgment passed in Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground of lack of jurisdiction in the Adjudicating Authority. 11. Mr. Krishanendu Dutta, learned senior counsel opposing the appeal has argued that the appeal is liable to be dismissed with imposition of heavy cost. He highlights that the misconduct of the appellant/RP is evident from the fact that 1st Meeting of CoC was conducted on 19.04.2021 whereas CIRP was initiated after the admission of the application filed under Section 7 of the IBC which was admitted on 06.11.2019. He further submits that the situation which arose is due to approach of the appellant/RP which was alien to the IB Code. Despite request made by the respondent for holding CoC Meeting for the purposes of removal of the RP neither RP/appellant was responding to the request of the applicant nor he allowed convening of the CoC Meeting. He by way of referring to provision contained in Regulation 18 of IBC (CIRP) Regulations 2016 submits that it was appellant/RP who was to convene a Meeting of the CoC and since he was completely reluctant to convene Meeting with an Agenda for removal of the RP, the applicant was having no option but to approach the Adjudicating Authority for passing appropriate order for remova ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case, i.e. more than one and half year delay in convening 1st CoC Meeting, sitting tight over request for holding CoC Meeting for removal of RP etc, this appellant may not get any assistance from the said judgment. The email dated 03.10.2021 is reproduced as hereunder:- EXHIBIT- H From: Sumit Sharma /Operations/Srel [email protected] Date: Sun, Oct 3, 2021 at 2:42 PM Subject: Re: MINUTES OF MEETING-4TH COC MEETING-SHREE RAM URBAN INFRASTRUCTURE LIMITED To: SRIGOPAL CHOUDHARY [email protected] Ce: BC Bhandari /F5G/Srel [email protected] , Kumar Saurabh/SPG/Srei kumar saurabhisrel.com , Ganesh Bagree /Financial Solutions Group/Srei [email protected] , Rajesh Agarwal/Operations/Srel crajesh [email protected] , Jaita Sarkar /Operations/Srel jalta [email protected] , ashish [email protected] , Jagdish Kumar jagdish [email protected] , [email protected], Jagdish pillai [email protected], Nitin Valani [email protected], Arvind ILFS Accounts Dept [email protected] , Vikas Kasliwal Vikas [email protected] , vikas kasliwal vsk@@skumars.co.in, [email protected] , [email protected] , Sakti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired after the admission order was passed: a. By an affidavit dated 30th August 2021, you have consented to the Intern Application field by Kalpataru Properties Pvt Limited, without first informing the CoC. We have to state here tha Section 28 (d) read with Regulation 25 of the CIRP Regulation stipulates that the Resolution Professional has to seek approval of the CoC by putting the said agenda for voting. However, not only did you fail to put the same before the CoC, but you have unilaterally and arbitrarily consented to such execution of Decree in favor of Kalpataru, speak volumes of your conduct and underhand dealings with third parties involved in the CIRP. It is on your failure to defend the Application of the Kalpataru Properties Pvt Limited, we were constrained to file an Interlocutory Application opposing the Interlocutory Application filed by Kalpataru Properties Pvt Limited and to safeguard our Interests and interests of other stakeholders and because of your such nonchalant behavior towards the members of CoC, we have incurred huge expenses in proceedings before the NCLT. Your conduct is further highlighted from the fact that in your reply to the application filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share with CoC within 54 days. g. you have not provided details of total flats available, hats sold, balance in possession with you has been shared with CoC. You filed an application to NCLT for exclusion of 493 days from the CRP as you were unable to perform duties as a Resolution Professional, however the delays and laches during the CIP are on your account, it is you own case that you were unable to perform duties however, you continued to charge professional services to carry out ORP. Further you have appointed Legal Representatives without seeking approval of the CDC. This is a CoC agenda and voting item but you seemed to be least interested in taking our approval. h. You have reduced our claim substantially without adequate documentary proof so as to penalize us for not making payments which is prejudicial and clearly shows that you are hand in glove with the Promoters and third parties to the present case. i. Further you have also asked for a success fee of 1.75% of the total Resolution Plan and further Rs.50,000/- per day to visits made to any cities of India outside Kolkata to scout for investors. It is clear evident that you do not seem to be Interested in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( KIL ) matter was one of the agenda items. The CoC members raised the concern regarding the acceptance acceded by the RP before the Hon'ble Bombay High Court on 30th August 2021 (affidavit copy High Court order dated 09th September 2021 is attached) and subsequently before NCLT, Mumbal. The CoC sought for the approval accorded by the CoC. The RP replied by stating that there are 6 references to the KIL matter in the CoC meetings and abo mentioned about the verbal legal opinion disclosed to the CoC in the annexures to the agenda item (in the 1st CoC meeting agenda items). SREI and the Authorized Representative of Homebuyers shared their reservations as there was a moratorium and any transaction relating to sale of CD's asset cannot happen without CoC's approval. The RP also mentioned about the Supreme Court order whereby KL was allowed to execute the decree and now the CoC (Srei in particular) were against We have categorically stated in the CoC meeting that we are not against the SC order but wanted to check on the moratorium clause under IBC Mr.Vikas Kashiwal, the Promoter and one of the CoC participant countered the statement of RP by stating that how can RP conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs are nothing but another attempt to create a false record against the SREI Equipment Finance Limited. 14. You have further stated that RP has engaged various professionals like Advocates and other professionals, however, the RP has never invited quotations from the legal advisors or the same has never been shared with the members of the CoC. You have without seeking approval of the CoC unilaterally appointed professionals without the prior approval of the members of the CoC. You have stated that right from the Insolvency Commencement Date you have engaged in the legal battles at various forum, therefore, it would have been just and prudent on your part to inform CoC or call for a meeting of CoC to appraise the members of the CoC of the anticipated expenses. However, without informing or seeking approval from the CoC, you have continued to engage advocates and counsels without first approving the expenditure from the members of the CoC. Further you have also sought exclusion of 493 days from the CAP period on account that the RP couldn't perform its duties under the Code, therefore. If you couldn't perform any duties as RP. the question of professional fees for the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow: 16. Power to appoint to include power to suspend or dismiss.-Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power. The Hon ble Supreme Court in M/s. Heckett Engineering Co. Vs. Their Workmen reported in (1977) 4 SCC 377 has held that the Appointing Authority can also dismiss the appointee. 14. We are of the opinion that the Adjudicating Authority being the appointing authority of IRP/RP was well within its jurisdiction to pass an order for removal of the RP particularly in a situation where the RP had not taken any steps to convene a meeting of the CoC for the purposes of removal of RP. 15. At the cost of repetition, it is pertinent to mention that the CIRP was initiated vide order dated 06.11.2019 and the first CoC Meeting was conducted on 19.04.2021 after a lapse of one and half years and the Adjudicating Authority has categorically observed that the RP has miserably failed to adhere ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
