TaxTMI 
TaxTMI 
2022 (4) TMI 880
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....r 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 item No. 7A, the sole Financial Creditor, M/s. Volkswagen Finance Pvt. Ltd. having 100% votin....
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....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 petition under Section 9 through the Respondent No. 1 and the purpose for filing the main Petition was not the Resolution of the Corporate Debtor but fo....
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....he 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 number of an Insolvency Professional Mr. Debadatta Mohapatra [9851073815/9437503765] and requested the RP to share the minutes of the meeting to the Insolvency Professional and talk to the Insolvency Professional and....
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....e 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 Commissioner denied/refused to take proper action as the matter was out of their preview. 6.9 The CD was going concern and doing great business as evident from the very fact "Potential Coaching Institute" entered into an agreement with the CD for 50% partnership. Had the CD bei....
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.... 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, the extract of which is reproduced as follows: "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 this Hon'ble court and get a safe route to escape from the various liabilities and obligations by using this very law as a pr....
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....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, have admitted the writing of this e-mail dated 01.09.2015 in the 6th CoC meeting held on 06.03.2021. This email is also attached by the respondents No. 1-3 in their replies to the present IA 37 of 2021: i. All the three respondents admitted to have been working with the corporate debtor since last three years and always had the knowledge of the wrong doings of the respondent No. 6 and 7 but had never filed a single compla....
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....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 respondent is evident from the reply in para 6 wherein he now submits that his allegation of collusion was based upon his belief and understanding and 'shall not be construed otherwise'. 10.2 It is reiterated that the respondent was a necessary party in the present application as he himself had alleged collusion between the applicant to the main petition and the suspended board. 10.3 Contents of Para 3A to C of the reply of R5 are a surprise to the applicant RP as to....