9911796707
TMI Blog2023 (12) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... ich order was challenged by the IRP in this Tribunal. The above judgment fully supports the submissions of the Counsel for the Respondents. When the Resolution has been passed by the CoC in accordance with the provisions of the IBC deciding to replace the IRP, IRP cannot be heard in questioning the resolution on the ground that present was not a case where IRP could have been replaced by another Resolution Professional. Submission of the Appellant that in the Resolution dated 01st September, 2023 name of Anil Goel was mentioned whereas the Adjudicating Authority has approved the replacement with Resolution Professional- Ankit Goel - HELD THAT:- Suffice it to say that name of Ankit Goel was clearly mentioned in the Joint Lenders Meeting dated 28th August, 2023 when Joint Lenders Meeting decided to replace the Appellant with Ankit Goel. Further it was the Appellant who in the minutes dated 01st September, 2023 has mentioned Anil Goel. Registration No. of Ankit Goel and that of Anil Goel mentioned in the minutes is same as submitted by Learned Counsel for the Respondent. The mere fact that the name of RP who is to be appointed after replacement is spelled as Anil Goel instead of Ankit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch Specified Undertaking of Unit Trust of India Ltd. (SUUTI in short) have 74.64% vote share. ii. On 19th July, 2023, an Email was sent by SUUTI asking the Resolution Professional to reduce his fee as well as CIRP Cost. Appellant by its email informed the SUUTI on same date i.e. 19th July, 2023 that he shall not be able to reduce his fee. The CoC made a request to Resolution Professional to convene a meeting of the CoC for 25th July, 2023. A meeting of CoC was convened for 25th July, 2023 which was held on 26th July, 2023 (18th CoC Meeting). One of the Agenda Item No. 7 was "to consider, approve and vote on agenda of Resolution Professional". iii. The meeting dated 26th July, 2023 was held as 18th CoC Meeting in which Agenda Item No. 7 was taken. On the said agenda, the Resolution Professional recorded in the minutes that Agenda Item No. 7 shall be taken in the next CoC Meeting i.e. 19th CoC Meeting since the emails were received after circulation of the notice. Chairman also expressed his inability to continue rendering the service. Subsequent to 18th CoC Meeting, a Lenders Meeting was held on 28th August, 2023 which was attended by all the three members of the CoC where Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de. There was proposal for replacement by Ankit Goel whose registration number was mentioned whereas it was the Appellant who in the minutes of the meeting mentioned the name of Ankit Goel as Anil Goel. It is submitted that Appellant's replacement being in accordance with the provisions of the IBC, appellant has no right to challenge the order of the Adjudicating Authority. 8. We have considered the submissions of Learned Counsel for the parties and have perused the record. 9. As noted above, on 19th July, 2023, Member of CoC, SUUTI has written an email to the Appellant to reduce his fee and CIRP Cost which was declined by the Appellant thereafter there was request made to convene a meeting including agenda for replacement of the Resolution Professional. Notice for agenda was issued for 18th CoC meeting to be held on 25th July, 2023 which actually was held on 26th July, 2023 in which meeting one of the agenda which was Agenda Item No. 7 was to the following effect : "Item No. 7. To consider, approve and vote on change of resolution professional" 10. The Agenda and other materials have been brought on record by the Appellant itself along with I.A. No. 5665 of 2023. In the meet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 Moore Singhi Advisors LLP Rs. 5 lakhs per month 4 C.R. Shah & Associates. Rs. 4 lakhs per month It was noted that AAA Insolvency Professionals LLP with the RP as Mr. Ankit Goel had quoted the minimum of Rs. 2 lakhs per month and hence the members of the Joint Lenders Meeting selected Shri Ankit Goel as the new RP of M/s. Modern Syntex (India) Ltd. The meeting concluded with a vote of thanks" 12. It was after the Joint Lenders Meeting that the CoC requested the Appellant to convene the meeting of the 19th CoC meeting on 30th August, 2023. Resolution Professional issued notice for agenda for 01st September, 2023 where agenda was issued where Item No. 7 was following: "7. To consider, approve and vote on change of Resolution Professional" 13. The meeting of CoC was held on 01st September, 2023 in which Resolution to replace the Appellant with Anil Goel was passed. The Appellant himself has in the Appeal pleaded that in the meeting held on 01st September, 2023, the CoC resolved to appoint Mr. Anil Goel. The Appellant has brought on record the CoC minutes of 01st September, 2023 which according to the Appellant were circulated on 04th September, 2023. As per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant to take appropriate action. The fact that SUUTI decided not to lodge FIR cannot be a reason for the Appellant to contend that the decision taken for replacement of the RP cannot be approved. 17. We have further noticed that on 19th July, 2023, an email was sent by the SUUTI to the Appellant to reduce his fee and CIRP Cost which was immediately declined and in 18th CoC Meeting it was Appellant who himself has expressed, and it was noted in the minutes that he is not interested to continue any further. He has expressed his inability to continue rendering his services. In the above background, sequence and events, we see no reason to find any fault with the Resolution of the CoC replacing the Appellant with another Resolution Professional under Section 27. It is the CoC who is empowered to pass a Resolution to replace the RP. Section 27, sub-section 1,2 and 3 is as follows: "Section 27: Replacement of resolution professional by committee of creditors. (1) Where, at any time during the corporate insolvency resolution process, the committee of creditors is of the opinion that a resolution professional appointed under section 22 is required to be replaced, it may replace him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CoC is of the opinion that a resolution professional appointed under section 22 is required to be replaced, it may replace him with another resolution professional in the manner provided under the section. The manner provided under Subsection (2) of Section 27 is that a resolution be passed at the meeting of the CoC by vote of 66% voting share to replace the Resolution Professional and to appoint another Resolution Professional, subject to a written consent from the proposed resolution professional. 7. In the present case, the CoC in its meeting dated 04.06.2022 with 100% vote has decided to replace the Appellant with another Resolution Professional. When we look into the scheme of Section 27 as delineated by the statute, it does not contemplate any opportunity of hearing to the Resolution Professionals be given by the Adjudicating Authority before approving the proposal of new Resolution Professional. Section 27 requires the CoC to forward the name of proposed Resolution Professional to the Adjudicating Authority and the Adjudicating Authority is required to forward the name of the proposed Resolution Professional to the Board for its confirmation. The scheme of Section 27 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the minutes dated 01st September, 2023 has mentioned Anil Goel. Registration No. of Ankit Goel and that of Anil Goel mentioned in the minutes is same as submitted by Learned Counsel for the Respondent. The mere fact that the name of RP who is to be appointed after replacement is spelled as Anil Goel instead of Ankit Goel in the minutes which was produced by the Appellant shall have no effect on the resolution for replacement and we do not find any merit in the above submission of the Appellant that although Appellant was decided to be replaced by Anil Goel but ultimate order is of Ankit Goel. Appellant himself has brought on record materials in I.A. No. 5665 of 2023 that written consent and affidavit of Ankit Goel which was obtained by the CoC which is at page 201 and 202 of the Application where affidavit and written consent given by the Ankit Goel has been filed. We thus are of the view that there is no error in replacement of the Appellant by Ankit Goel as RP . 23. The Appellant in his grounds has also contended that the Adjudicating Authority has not adverted to the resolution dated 01st September, 2023 and has only relied on Joint Lenders Meeting dated 28th August, 2023. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
