TaxTMI 
TaxTMI 
2021 (5) TMI 571
X X X X Extracts X X X X
X X X X Extracts X X X X
....this Hon'ble Tribunal may deem fit, to pay to Mr. Anil Agarwal the CIRP cost amounting to Rs. 17,81,160/- (Rupees Seventeen lakh eighty one thousand one hundred sixty only) 2. The matter is taken up by this Bench on 10.02.2021 and 23.03.2021. Heard the IRP, FC and CD and perused the documents made available. It is now necessary to reproduce below the portion of the order passed by this Bench on 23.03.2021 before passing appropriate order in this IA. Relevant portion of the Order dated 23.03.2021 is reproduced below: 4. On 21.05.2018, the Respondent Punjab National Bank filed applications under Section 7 of IBC before this Bench against the following three Companies: (i) Shree Sai Prakash Alloys Pvt. Ltd. [CPIB No.24/GB/2019] (ii) Shree Sai Rolling Mills (India) Pvt. Ltd. [CPIB No.22/GB/2019] (iii) Shree Sai Smelters (India) Pvt. Ltd. [CPIB No.23/GB/2019] with a claim of Rs. 84,46,17,450.68 (Rupees Eighty Four Crores Forty Six lacs Seventeen thousand Four hundred Fifty and paise Sixty Eight) only against Shree Sai Prakash Alloys Pvt. Ltd. [CPIB No.24/GB/2019], Rs. 35,38,27,057.67 (Rupees Thirty Five Crores Thirty Eight lacs Twenty Seven thousan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onal' to ensure compliance of this order." 4. Part of the Final Order dated 18.06.2020 of Hon'ble NCLAT is reproduced below: "18. In the Impugned Order, the adjudicating authority has mentioned that the Corporate Debtor gained so much time on the pretext of settlement and also by filing Writ Petition before the Hon'ble High Court of Meghalaya at Shillong and it is high time to put an end to this matter. 19. It is undisputed that by the order of the Hon'ble High Court dated 19th August 2019 parties were directed to maintain status quo till 26th August 2019. However, the Adjudicating Authority, without taking the status quo of the High Court passed the Order of Admission on 23rd August 2019. ... 24. It is on record that on the day petition was admitted there was status quo order by the Hon'ble High Court and which was in the knowledge of the Adjudicating Authority. But the Adjudicating Authority admitted the Petition by the impugned order dated 23rd August 2019. 27. On perusal of the record that it is also evident that there is no proper compliance under Section 7(5) (a) of the Insolvency and Bankruptcy Code, but this defect in th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Hon'ble Supreme Court passed on the Writ filed by the Petitioner (FC) against the order of the Hon'ble NCLAT dated 18.06.2020. 6. Section 7 (4) of IBC reads as under "(4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3)." 7. Section 12 (1) of IBC reads as under: "12. (1) Subject to sub-section (2), the corporate insolvency resolution process shall be completed within a period of one hundred and eighty days from the date of admission of the application to initiate such process. (2) The resolution professional shall file an application to the Adjudicating Authority to extend the period of the corporate insolvency resolution process beyond one hundred and eighty days, if instructed to do so by a resolution passed at a meeting of the committee of creditors by a vote of seventy-five per cent of the voting shares." 8. Hon'ble Supreme Court has held in the matter of COC of Essar Steel India Ltd. Vs Satish ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3.2021". 8. In compliance with the order of this Bench, the IRP has filed the Affidavit dated 03.03.2021. Relevant part of the same is reproduced below: "5. That the Applicant was appointed as Interim Resolution Professional vide Order dated 23.08.2019 and the Applicant had received the copy of the order dated 23.08.2019 on 26.08.2019. Thereafter, on 27.08.2019 sent intimation letter to the Respondent no.1 and 2 conveying about the order of the initiation of the CIRP process. The Applicant had also sought the details from the management of the Corporate Debtor regularly and government agencies so that intimation can also be sent to them. 9. That even after the stay by the Hon'ble NCLAT, the Applicant had continued performing the duties but in compliance of the orders, had not constituted the committee of creditors. The Applicant on 11.10.2019 emailed to the erstwhile management of the Corporate Debtor requesting them to provide the relevant documents and details as required to understand the business affairs of the Corporate Debtor. 13. That since the matter was pending before the Hon'ble NCLAT the Respondent no. 2 erstwhile management was least ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er of Rajkumar Brothers and Production Private Limited Vs Harish Amilineni shareholder and erstwhile Director of Amilineni Technologies Private Limited and Anr (Civil Appeal No.4044 of 2020. In this matter the Hon'ble NCLAT while dismissing the order of the initiation of the CIRP had directed the Creditor who initiated the CIRP proceedings by fling Application to pay the CIRP Cost and fees of the IRP. The creditor had moved before the Hon'ble Supreme Court and challenged the order of the NCLAT which got dismissed. In this matter also the Respondent no.1 / Bank is also liable for the payments of the CIRP cost and fees of the Applicant / IRP who had initiated the Application for the CIRP of the Corporate Debtor. A copy of the order passed by the Hon'ble Supreme Court on 22.01.2021 in the matter of Rajkumar Brothers and Production Private Limited Vs Harish Amilineni shareholder and erstwhile Director of Amilineni Technologies Private Limited and Anr (Civil Appeal No.4044 of 2020 is annexed herewith and marked as ANNEXURE A-11. 9. In compliance of the order of this Tribunal, the FC has filed Affidavit-inreply on 10.03.2021 enclosing the copy of the order of the Hon'bl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt. 8. That the financial creditor has filed this affidavit-in-reply bonafide and to secure the ends of justice. 9. The judgement of the Hon'ble Supreme Court dated 10.03.2021 is reproduced below: "Upon hearing the counsel the court made the following O R D E R List on 26.03.2021." 12. The Learned Counsel appearing for the FC has submitted that it has not entered into agreement with the IRP for his fees as IRP but submits that the RP has undertaken other assignment from the FC. Hence, both the FC and IRP can sit together to decide the fees. 13. The Learned Counsel of the FC has further submitted that the IRP should continue to work as IRP till the final disposal of its appeal filed before the Hon'ble Supreme Court. On the other hand, the Learned Counsel appearing for the Respondents has submitted that once the CIRP process is set aside by the Hon'ble NCLAT, the role of IRP is not there. Hence, the IRP should not continue. 15. When the Application is filed under Section 7 of IBC, the IRP is going to take the charge of a CD, there is no agreement/understanding between the FC and the IRP with regard to the fees of IRP and the IAs ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or CIRP. More than 1000 days have already passed even before the commencement of the actual CIRP in the process of OTS, acceptance/nonacceptance of OTS, Negotiations/further Negotiations. Commitments and failure of commitments, filing of IAs after IAs, Cases/Appeals before the Hon'ble NCLAT, Hon'ble High Court and Hon'ble Supreme Court. Objectives of the IBC are very clear i.e. Insolvency Resolution of Corporate Persons /Stressed Assets in a time bound manner for maximisation of value of Assets of such persons, promotion of entrepreneurship, availability of credit and balance of interest of all stake holders. Delay in resolution of these stressed Assets costs heavily to all stake holders especially CD itself, employees of the CD, Creditors and others. No FC/OC may come forward to extend credit once an application under Section 7 of the IBC is filed. On the other hand, the funds of the existing FC is blocked and cannot be further deployed. On the other hand, CDs cannot keep the IBC matters postponed in the name of OTS offer, implementation of offers and filing of IAs etc. It is also a fact that there is a very little scope of negotiations, further negotiations, fil....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ompliance of the order dated 18.06.2020 passed by Hon'ble NCLAT, the Applicant had stopped controlling the affairs of the Corporate Debtors by not denying /objecting the letter dated 20.06.2020 sent by the Respondent no.2 / erstwhile management. 5. That the Applicant had not withdrawn its consent from being an IRP for the Corporate Debtors. Since the order of admission was set aside, the Applicant deemed fit to release the Corporate Debtor and to handover the control of the Corporate Debtors to the erstwhile management. 6. That the Applicant from the date of initiation of CIRP dated 23.08.2019 till the final order passed by the Hon'ble NCLAT dated 18.06.2020 had controlled the affairs of the Corporate Debtor and had also complied with the direction given by the Hon'ble NCLAT. 7. That the Applicant at the time of hearing dated 10.02.2021 had submitted that the control of the Corporate Debtor was handed over back to the Corporate Debtor which means that the Applicant had stopped managing the affairs of the Corporate Debtor. 8. That during the course of hearing the Applicant submits that, through the submissions of the Financial Creditor and the corporate Debtor, he came t....