TaxTMI 
TaxTMI 
2022 (4) TMI 429
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....e Debtor; ii. To discuss on changing the RP in the present matter and appoint another RP to run the corporate debtor as a going concern, if required; and iii. To take decisions on the items envisaged under Regulations 39B, 39C and 39D of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 in the event of liquidation of corporate debtor. 2. The gist of the Applicant's brief is- 1. This Adjudicating Authority, vide its Order dated 12.03.2018 admitted the Company Petition CP(IB) No. 219/7/HDB/2017 filed under Section 7 of I & B Code, 2016 initiating the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor and appointed the Respondent herein as Interim Resolution Professional and later confirmed as Resolution Professional (for short 'RP/Respondent') at the COC meeting held on 09.04.2018. 2. The COC at its 18th meeting held on 11.03.2019 and 12.03.2019 evaluated the Resolution Plans submitted by ARCIL, Unison Hotels Private Limited and CFM Asset Reconstruction Private Limited ("CFM ARC") and approved the Resolution Plan submitted by CFM ARC by 88% voting. 3. The RP had filed an ap....
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...., the applicant sent an email dated 26.05.2021 requesting the RP to convene a meeting of the COC to deliberate on the future course of action. A copy of the email dated 26.05.2021 is filed as Annexure-6 of the application. 7. CRM ARC withdrew the aforesaid writ petition and again filed a writ petition W.P. No. 22667 of 2021, vide its order dated 16.09.2021 suspended the operation of the order passed by this Hon'ble Tribunal in IA No. 281 of 2019. The applicant once again sent an email dated 23.11.2021 (Annexure-7 of the application) requesting the RP to convene a meeting of the COC to discuss the way forward and renewal of bank guarantee furnished by CFM ARC but the requests of the applicant deliberately fallen on the deaf ears of the RP. 8. In terms of Regulations 39(B) and 39(C) of the IBBI, the COC has to make a best estimate of the amount required to meet liquidation costs in consultation with the RP and the COC has the option to recommend the RP to first explore the sale of the corporate debtor as a going concern or sale of its business as a going concern respectively. In the present case, neither has the COC made an estimation of the liquidation costs no....
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.... the IRP/RP, as the case may be. The Bank will also the Company (Corporate Debtor) to withdraw the amount(s) in terms of the approval of the IRP/RP for its day-to-day function. The Learned Counsel for the Appellant is allowed to hand over a copy of this order to "Interim Resolution Professional/Resolution Professional". iv. It is denied that in the last meeting of COC, no discussions have taken place on the liquidation costs and fee of liquidator in the event the company goes into liquidation which have to be mandatorily decided after introduction of Regulation 39B to D of the CIRP Regulations, vide amendment dated 25.07.2019. As the matter is pending consideration before the Hon'ble NCLAT and as on today no COC is in existence in the eyes of law, as such, the same cannot be demanded for by one party. v. The aforesaid provisions were brought into force from 25.07.2019 i.e. after submission of approval of resolution plan to Adjudicating Authority i.e. on 25.03.2019. When the resolution plan is pending for approval, Resolution Professional cannot initiate any action without a specific direction from this Hon'ble Tribunal. If this Hon'ble Tribuna....
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....tes of the Meeting of the JLM is filed as Annexure-1 at page Nos. 12 to 18 of the Rejoinder. ii. It is stated that the applicant sought information vide its email dated 23.09.2019 are neither provided on any website nor have they been provided by the RP in its email dated 04.10.2019. iii. It is in the knowledge of public domain that the erstwhile promoter was involved in several fraudulent and avoidance transactions due to which ED and CBI have initiated proceedings against him and the assets of the corporate debtor under PMLA Act. It is suspected that significant amounts are siphoned off by the erstwhile promoters and relevant parties. The resolution of the COC to conduct a forensic audit was already taken by requisite majority of COC members as has also been upheld by this Hon'ble Tribunal in IA No. 344 of 2018, dated 26.02.2019. A copy of the same is filed as Annexure-3 of the rejoinder. iv. The COC during its 18th meeting had decided that the Applicant herein will be finalizing the scope of work for forensic audit and further on 12.03.2019, the COC had resolved to appoint M/s. Grant Thorton as the forensic auditor. The applicant finalized the scop....
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.... under appeal? We have heard Shri Shabbeer Ahmed, Learned Counsel for applicant and Shri K.V. Simhadri, Ld. Senior Advocate for Shri A. Chandrasekhar, Learned Counsel for RP, perused the record, written submissions. 6. Ld. Counsel for the Applicant, Shri Shabbeer Ahmed submitted that this application has been filed, pursuant to the unanimous resolution passed by the Joint Lenders with 85% voting share in their meeting held on 20.11.2021, alleging that their multiple requests to the Resolution Professional to convene the meetings of the members of COC have turned futile. A copy of the Minutes of the said Meeting of JLM also has been filed as Annexure-I at page Nos. 12 to 18 of the Rejoinder. 7. Ld. Counsel would further submit that the RP in this case is not implementing the decisions of the COC besides failed to provide the monthly cash flow statements for the period from March 2018 to August 2019, statement of CIRP expenses, reasons for increase in expenditure, status of forensic audit, financial statements for the year 2019-20, expenses for the financial year 2020-21 etc. In support of this plea, the applicant filed copies of emails as Annexure-2, 3 & 4 at page Nos. 16 t....
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.... forensic audit with IBBI against RP and the same is pending. Right from the beginning, the petitioner is harassing the RP in different ways. It is stated that for the same cause of action, multiple remedies are not to be permitted and this IA needs to be dismissed. 11. Ld. Senior Counsel placing reliance on the Order of the Hon'ble NCLAT dated 17.02.2021, also urged that, since one of the items in the agenda to be discussed in the proposed meeting of the Members of the COC is to replace the present RP, since amounts to violation of the orders of the Hon'ble NCLAT dated 17.02.2021, no direction to call for the proposed meeting can be issued by this Tribunal and the application is liable to be dismissed at the threshold. It is further submitted that from time to time, the RP has been responding to the queries of the Members of the COC and made it clear on several occasions that after CIRP process ended, COC can be convened only upon the direction of this Tribunal. In this context, Learned Sr. Counsel placed reliance on Section 28 of IBC which is stated that once the Resolution Plan approved by COC it is to be submitted with the Adjudicating Authority for approval then COC....