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TMI Blog2024 (5) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... d while auction was under stay. If this period of 37 days from 03.10.2021 to 08.11.2021 is not excluded and is added to the liquidation period of 174 days determined by the Adjudicating Authority, it can be said that the liquidation process period was 211 days. The period consumed in the liquidation process in this case is accordingly determined as 211 days. The Stakeholder s Consultation Committee is directed to compute and pay the Liquidator s fees accordingly. Appeal disposed off. - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) And [ Ajai Das Mehrotra ] Member ( Technical ) For the Appellant : Mr. Rakesh Gupta , Advocate For the Respondents : Ms. Eshna Kumar and Mr. Akshat Maheshwari , Advocates JUDGMENT ( Hybrid Mode ) [ Per : Ajai Das Mehrotra , Member ( Technical ) ] 1. The present appeal has been filed by the Stakeholder Consultation Committee of M/s Punjab Basmati Rice Ltd., which is under liquidation. The appeal is filed against the impugned order dated 01.09.2023, wherein the National Company Law Tribunal (NCLT), Chandigarh had allowed the application IA No. 1551 of 2023 filed by the liquidator and dismissed application IA-1245 of 2023 filed by the Stakeholder Consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of clause (b), it is hereby clarified that where a liquidator realises any amount, but does not distribute the same, he shall be entitled to a fee corresponding to the amount realised by him. Where a liquidator distributes any amount, which is not realised by him, he shall be entitled to a fee corresponding to the amount distributed by him.] (3) Where the fee is payable under clause (b) of sub-regulation (2), the liquidator shall be entitled to receive half of the fee payable on realisation only after such realised amount is distributed. Clarification: Regulation 4 of these regulations, as it stood before the commencement of the Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment) Regulations, 2019 shall continue to be applicable in relation to the liquidation processes already commenced before the coming into force of the said amendment Regulations.] As can be seen from Regulation 4 referred above, the liquidator s fees is contingent upon the time taken to realise/ distribute the amounts amongst stakeholders. In the present case, the liquidation order was passed on 18.12.2019 and the distribution was completed on 02.05.2023. These dates are not disputed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its contentions the liquidator had relied upon decision of Hon ble NCLAT in the matter of Small Industries Development Bank of India v/s Shri Vajender Sharma Company Appeal (AT) (INS) No. 1027 of 2021 and decision of Hon ble NCLAT in the case of Ashish Arjun Kumar Rathi, Company Appeal (AT) (CH) (INS) No. 139 of 2021. 6. On the other hand, in its submission before the Adjudicating Authority the Stakeholders Consultation Committee had calculated the time which is consumed in the liquidation process as 213 days as per table reproduced below:- Sr. No. Calculation of the liquidation process period of the corporate debtor No. of days 1. Liquidation order passed on 18.12.2019 2. Time period taken into account from 18.12.2019 to 14.03.2020 for the purpose of process of liquidation process period (Dec-12, Jan-31, Feb-29, March-14= 88 days) 86 days 3. Time period excluded since 15.03.2020 to 02.10.2021 from the total liquidation process period as per order dated 01.11.2021 passed by Hon'ble NCLT (AA). Copy of order 01.11.2021 attached Annexure A-1 0 4. Time period for liquidation extended upto 31.03.2023. Period between 09.11.201 to 30.03.2022 excluded because of stay granted. Time s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... takeholder. A reference is also made to the decision in the case of SIDBI (Supra) and Ashish Arjun Kumar Rathi (Supra), wherein on similar facts, the Hon'ble NCLAT, Delhi and Chennai, respectively, have allowed exclusion of period of the said liquidation process of the corporate debtor from the calculation of the time taken for realisation and distribution of the assets of the corporate debtor in terms of Regulation 44 read with Regulation 4(3) of the IBBI (Liquidation Process) Regulation 2016. 13. In view of the same, we direct that the period of exclusions allowed by this Adjudicating Authority in the orders dated 01.11.2021, 30.03.2022, and 02.02.2023 be also excluded for the computation of the liquidation period for the purpose of calculating the liquidator's fee slab under Regulation 4 of the Liquidation Process) Regulations 2016. 14. The applicant-liquidator and the respondents have given different computations for computing the time spent on the liquidation process for computing the liquidation process period. The same has been perused closely. The correct in our view, is under: Total No. days of exclusion as per the order of this Adjudicating Authority. Date of orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Adjudicating Authority. It was submitted that the liquidator had sought exclusion of period of stay, namely 09.11.2021 till 02.02.2023. The Adjudicating Authority has erred in excluding the period consumed in the adjudication of IA No. 471/ 2021 and 550/2021 for the computation of period of liquidation process, that is from 31.08.2021 and not from 09.11.2021 when the stay was granted. The learned counsel for the appellant explained that period up to 02.10.2021 was already excluded by the Adjudicating Authority vide order dated 01.11.2021 and they are mainly challenging the exclusion from 03.10.2021 till 08.11.2021. 9. Learned Counsel for the respondent drew our attention to order dated 02.02.2023 of the Adjudicating Authority wherein the Adjudicating Authority has recorded that the e-auction was deferred through order dated 09.11.2021 passed in IA No. 550 of 2021 and it was directed to exclude the period consumed in the adjudication of IA No. 471 of 2021 and IA No. 550 of 2021 from the computation of period of Liquidation Process. It was submitted that even the period 03.10.2021 to 08.11.2021 is also covered by the exclusion granted by the Adjudicating Authority. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that if the appellant was aggrieved by the order dated 02.02.2023 of the Adjudicating Authority, excluding period consumed in adjudication proceedings of IA No. 471 of 2021 and IA No. 550 of 2021, they should have filed appeal under Section 61 before National Company Law Appellate Tribunal. It was submitted that the periods were finally excluded by order dated 02.02.2023, and had attained finality as no appeal was filed against them, whereas the impugned order was passed on 01.09.2023. It was submitted that the appellant cannot now challenge the order dated 02.02.2023, after the period of appeal (including the condonation period) is already over. Since the exclusions are specifically granted by the AA and even the period of liquidation is calculated by the AA, in view of latest clarification dated 28.09.2023 of IBBI, there is no error in computation of fees payable to the respondent liquidator. 14. The learned counsel also submitted that the exclusion granted in order dated 02.02.2023 is in IA No. 620/2021 and not in IA No.196/2021, though the prayers were similarly worded. 15. We have gone through the documents and pleadings submitted by both the sides as well as the ora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulations, 2016 as already approved by the Stakeholders and to exclude the period of stay imposed by Order dated 09.11.2021 till the date of vacation of stay/disposal of IA 471/2021 and IA 550/2021 filed by the respondent in the computation of the period of the liquidation process. 26. In view of the detailed order passed in IA No. 471/2021 and 1383/2022, the prayer with regard to the issuance of fresh e-notice is already allowed subject to the conduct of the SCC Meeting which will decide the reserve price and date of auction However, due to the fact that eauction has been deferred by Order dated 09.11.2021 passed in IA No. 550/2021, it is directed to exclude the period consumed in the adjudication of IA No. 471/2021 and IA 550/2021 for the Computation of period of Liquidation Process. The liquidator is further directed to complete the liquidation process within the stipulated time frame after excluding the period consumed in the adjudication of Applications. The present application is allowed with the aforesaid direction and disposed of accordingly. 18. We note that there is a discrepancy in the two orders of the Adjudicating Authority quoted above. While disposing IA No. 196 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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