TaxTMI 
TaxTMI 
2021 (5) TMI 82
X X X X Extracts X X X X
X X X X Extracts X X X X
....t that the Adjudicating Authority in the Impugned Order dated 22.04.2021 in I.A.No.361CHE/2021 in M.A.No.6/2021 in C.P./IB/CHE/597 of 2017 had among other things had directed the 'Resolution Professional to convene the meeting of the 'CoC' of the Members, who constituted the 'CoC' originally i.e. in the year 2017, soon after the order of admission was passed by this Tribunal' initiating the CIRP and place the draft of Application prepared under 12A of IBC, if any, along with Form FA or at the least Form FA as lodged with the IRP/RP, before the 'CoC' to be called and convened, as directed above and hold a meeting of the 'CoC' and report to this Tribunal about the decision of the Members of the 'CoC' as constituted in the year 2017. The 'CoC' constituted presently by the IRP/RP in derogation of the Order passed by this Tribunal shall stand suspended and shall not exercise any of the Powers as provide under the Provisions of IBC, 2016.' Further, the Adjudicating Authority in the Impugned Order had directed the IRP/RP to comply with the above directions within a period of ten days from today and report to this Tribunal, about the outcome of the 'CoC' meeting, as required to be called a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dered by the Adjudicating Authority before passing the Impugned Order because of the fact that the 3rd Respondent/Bank is the present 'Financial Creditor' of the 'Corporate Debtor'. 9. The prime stand of the Appellant is that soon after the order of admission of 'CIRP' of the 'Corporate Debtor', the Members who originally constituted the 'CoC' in 2017, are no longer 'Financial Creditors' and the said fact was pleaded by the 'Resolution Professional' himself, the 1st Respondent in his Affidavit dated 27.03.2021 filed in M.A.NO.6/2021 in C.P./IB/CHE/597 of 2017. 10. The Learned Counsel for the Appellant contends that the Members who originally constituted the 'Committee of Creditors' in 2017, soon after the admission order of 'CIRP' of the 'Corporate Debtor' are no longer 'Financial Creditors' of the 'Corporate Debtor' and placing for voting Form FA Insolvency and Bankruptcy Board of India(Insolvency Process for Corporate persons) Regulations, 2016 for withdrawal of the 'CIRP' of the 'Corporate Debtor' before such members who are third parties today, to the affairs of the 'Corporate Debtor' is against the Letter and Spirit of the Code itself. 11. The Learned Counsel for the Appell....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reditors' shall comprise all financial creditors of the corporate debtor etc. Also, the Learned Counsel for the Appellant refers to Regulation 12 (Submission of proof of claims) Regulation 13 (Verification of Claims) and Regulation 14 (Determination of amount of claim) and contends that when the 'Resolution Professional' comes across additional information warranting such revision, shall revise the amounts of claims admitted etc. 14. The Learned Counsel for the Appellant points out Section 3(8) of the Code which speaks of 'Corporate Debtor'. Also, the Learned Counsel for the Appellant refers to Section 5(8) of the Code which speaks of 'Financial Debt' and also Section 5(7) of the Code which deals with 'Financial Creditor'. 15. The Learned Counsel for the Appellant emphatically submits that the Appellant will submit 'Form A' and the 'Bank Guarantee' today itself and this can be taken note of by the 1st Respondent/Resolution Professional. 16. Per Contra, it is the submission of Learned Counsel for the 1st Respondent/ Resolution Professional that on 01.05.2021 the 'Committee of Creditors' meeting takes place at 12 Noon and further that 'Form FA' and 'Bank Guarantees' were not furni....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mits that Southern Airfurane Industries Ltd. and kges Residency P Ltd had withdrawn their claims entirely, Mr.Rohit S Bajaj (Sl.No.1 Creditor) had withdrawn one of the two claims fully and had opted to withdraw the other claim under 'Form C' as 'Financial Creditor' etc. (vide Page 1046 Vol IV of the Paper Book in Dairy No.415 dated 29.04.2021). 24. The Learned Counsel for the Appellant contends that against the 'Resolution Professional' a fine of Rs. 10,000/- was imposed and that he is not neutral and that apart the 'Disciplinary committee of ICSI Institute of Insolvency Professional' had rendered a finding against him. 25. The Learned Counsel for the 1st Respondent submits that the Company is not in operation and there is no business from 2017 till today and that Aruna Hotel is not running i.e. not in operation and that the 3rd Respondent/Bank will have first charge. 26. It is to be pointed out that when once the 'Committee of Creditors' is/was formed, the 'Resolution Professional' cannot alter the same. A 'Resolution Professional' has no 'Adjudicatory Power' under the I & B Code. In fact, the 'Corporate Debtor' was admitted into CIRP by the Tribunal on 17.11.2017. However, the....