TaxTMI 
TaxTMI 
2022 (4) TMI 880
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....ect the respondents No. 1-3 (Manish Soni, Pankaj Kumar Sahu and Vivek Kumar) to cease and desist from causing disruptions in the functioning of the applicant/resolution professional; c) To direct the respondent No. 4 (Mr. Hemanta Kalita partner of M/s. Damani Services) to provide available evidence of collusion between the respondents No. 1-3 (Manish Soni, Pankaj Kumar Sahu and Vivek Kumar); d) Pass any further order(s) as this Hon'ble Bench deem fit and proper" 2. It is stated that: 2.1 The order for initiation of CIRP of the Corporate Debtor was made by this Hon'ble Bench on 26.02.2020 and vide that order Mr. Amit Pareek, having registration No. IBBI/IPA-002/IP-N00413/2017-18/11205 was appointed as an IRP from the list of the empanelled IRPs. 2.2 The First Meeting of the Committee of Creditors of the Corporate Debtor was held on 06.05.2020 comprising of only the Operational Creditors and it was resolved vide agenda item No. 6 that the Respondent No. 5 herein, the IRP, Mr. Amit Pareek should be appointed as the Resolution Professional. 2.3 In the Fourth Meeting of the Committee of Creditors held on 03.09.2020, vide agenda ite....
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....elevant information necessary for preparation of his report. 3.3 The Respondent No. 4 (an Operational Creditor - M/s. Damani Services through its Partner Mr. Hemanta Kalita) has also filed an application under Section 60(5) praying for directions to the respondents therein "to apply for withdrawal of CIRP application so that the creditors can sue the CD & suspended BOD in other court of law and at the same time prevent Suspended BOD to escape safely using the ambiguity of IBC". Para 18 of the said application reads as under: "Further that, I have strong reasons to believe that, the suspended BOD may have made an attempt/arrangement through the applicant Mr. Manish Soni to file this case before the Hon'ble Court and get a safe route to escape from the various liabilities and obligations by using this very law as the protective shield". 4. The rationale for the present application is stated as under: 4.1 The Applicant/Resolution Professional is continuously being harassed by the Respondents No. 1 to 3 since the day of his appointment in the present matter as the Resolution Professional. All the three respondents had joined hands and filed the main pe....
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....as stated that: 5.1 After the appointment as the Resolution Professional of the Corporate Debtor vide Order dated 09.12.2020 of this Bench, the Resolution Professional carried on his duties as per the provisions of the Code. However, in the meantime, the RP had received continuous calls from the Respondents No. 1 to 3 on regular basis alleging collusion of the Respondent No. 5 - erstwhile IRP/RP with the Respondents No. 6 and 7 - Suspended Directors and his working with the sole intent of maximising his fees. They alleged that the Suspended Directors also intended to liquidate the Corporate Debtor to absolve themselves of all the liabilities outstanding including amount payable to the faculties. 5.2 After the 5th meeting of the CoC held on 29.12.2020 of the Corporate Debtor, a call was received by the RP from the Respondent No. 2-Mr. Pankaj Kumar Sahu on 30.12.2020 stating that he has come to know from his sources that the CoC has resolved to liquidate the Corporate Debtor. The RP apprised that it was not correct and in fact the CoC has passed the resolution for extension of the time period. The Respondent No. 2 was not willing to understand and then shared the nu....
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....f CIRP as required by the Code holds equally justified. 6.6 Whereas the first Application filed by the Respondent No. 1 was admitted by the Hon'ble Adjudicating Authority with a condition of depositing Rs. 1,50,000.00 as security. The Hon'ble Bench at that point of time had even asked whether the applicant was capable of providing the said security deposit amount or not, to which it was brought to the knowledge of the Hon'ble Bench that a total fourteen members were readily available for filing this application. 6.7 The suspended BoDs deducted TDS on the salary/professional fees so paid but never deposited to the concerned statutory authorities i.e. Income Tax Department. Thus due to this noncompliance on the part of the suspended BoDs on behalf of the CD led to huge tax implication and burden on the individual faculty and lecturers. This matter was also brought to the notice of the Income Tax Department. 6.8 The faculty and lecturers jointly submitted an application for addressing their grievances to the Deputy Commissioner Guwahati, for taking cognizance of the matter so that early payment of dues could be made. The concerned Deputy Commissi....
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....y as under: 7.1 The respondent herein denies and disputes all the averments and allegations made by the applicant upon him, save and limited to the extent expressly admitted hereinafter or that what is a matter of record. The respondent states that this denial shall be treated as specific denial. 7.2 The respondent states that the said I.A. has been filed to divert the attention from irregularity and misfeasance in the conduct of CIRP of the CD. 7.3 The applicant has no reasonable ground to make him party to the present case. 7.4 The respondent is representing partner of M/s. Damani Services, a partnership firm who happens to be member of CoC and an Operational Creditor, by virtue of having more than 10% of total claim admitted. 7.5 The applicant in Para No. 9 and 12 of this I.A. has misinterpreted and presented the statement as per his own convenience and suitability. The applicant deliberately ignores the context in which such statement was made. 7.6 Also, in view of IA 26/GB/2021 in CP(IB) No. 03/GB/2020, wherein Para 18 concern was raised regarding attempt/arrangement between Mr. Manish Soni and suspended Board of Directors,....
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....d by the petitioner be dismissed by this Hon'ble Tribunal and his name be removed as a party of instant I.A. 9. The Applicant/Resolution Professional has filed his rejoinder to the reply filed by the Respondents No. 1 to 5, wherein it has been submitted that: 9.1 The respondent No. 1 in collusion with respondent No. 2 and 3 has filed the main petition for recovery of his 3 months' unpaid dues amounting to Rs. 3,48,000.00 only calculated @ Rs. 1,16,000.00 per month and the corporate debtor remained ex-parte in the proceedings allowing the petition to be admitted. 9.2 The malicious and fraudulent intent of the respondent No. 1 to 3 are evident from the fact that they continuously harassed the RP by constantly demanding the details of progress in the case either telephonically or though e-mails with a cc of the e-mails and selective readings to officers of IBBI, Registrar NCLAT, Registrar NCLT, Secretary NCLT and Ministry of Corporate Affairs. 9.3 Further, respondents were aware of the diversion of funds by the respondent No. 6 & 7 since 2015 and it is evident from the e-mail dated 01.09.2015 in their possession written by respondent No. 6 & 7, ha....
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....pondents blow hot and cold from the same mouth, at one place they plead ignorance of law and at the other place they allege the RP of not taking appropriate steps as required by the Code. All these three respondents always made verbal allegations without any cogent evidence and whatsoever evidence they provide are vague, unsigned and masked as is evident from page 13, 15, 17, 18 of the reply filed by them. vi. Ignorance of law is never an excuse and the respondents are also not paupers as each one of them earned more than 1 lakh per month. Further they cannot plead illiteracy as they are faculties. It is also submitted in para 13 that there were group of 13 faculty members joining hands together. The RP fails to understand as to what prevented a group of 13 people earning more than 1 lakh per month from taking services of an advocate and when they were out on a mission to grant justice to all as submitted by them. 10. The Applicant further submits that: 10.1 The respondent 4 is made a party to the present application to substantiate the allegation of collusion levelled by him against the respondent No. 1 to 3 and respondent No. 6 & 7. The conduct of the respond....
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....ed. The Respondent therein i.e. the Corporate Debtor never appeared/not cooperated. 11.2 The CoC initially resolved to go for Liquidation and an application under the Section 33(2) of the Code filed by the RP, the Applicant here, vide filing number 1806122/00053/2021 was not found just during the COVID period by this Bench in the absence of sincere attempt on the part of the CoC to find a Viable Resolution Plan for the MSME CD. Now One Resolution Plan, out of two received, has been placed before this Bench for Approval. 12. It is a fact that the Respondent No. 1, Mr. Manish Soni has filed the Application under Sec. 9 of IBC for his 3 months' unpaid salaries amounting to Rs. 3,48,000.00 only calculated @ Rs. 1,16,000.00 per month and the corporate debtor remained absent in the proceedings allowing the petition to be admitted ex-parte but the RP's allegation against Respondent No. 1 that, he in collusion with respondent No. 2 and 3 and in connivance with the Suspended Board of Management, has initiated insolvency proceedings against the corporate debtor with a malicious intent for the purpose other than resolution of insolvency of the corporate debtor could not be....