TaxTMI 
TaxTMI 
2022 (8) TMI 107
X X X X Extracts X X X X
X X X X Extracts X X X X
....er referred to as the 'Code'), passed by the Learned Adjudicating Authority (National Company Law Tribunal, New Delhi, Principal Bench), whereby the Adjudicating Authority disposed of CA-1357(PB)/2019 and directed the Appellant/RP to file her 'Claim' before the Liquidator as the 'Corporate Debtor' was under Liquidation. For ready reference, the Impugned Order is being reproduced as hereunder: "This is an application principally for fixing the fee for the applicant namely Ms. Reeta Gupta, Interim Resolution Professional. A further prayer has been made to set aside the letter dated 14.09.2018, 25.09.2018 & 01 10.2018 and directing the CoC to pay for the period of appointment from 15.01.2018 to 11.06.2018. It is not disputed before us that in pursuance of Section 33 of the Insolvency & Bankruptcy Code CA-1144(PB)/2018 was accepted on 01.05.2019 and Liquidation of the corporate debtor was ordered as recommended by the CoC. The Liquidation proceedings are in progress and are pending before the Liquidator. Any claim by anyone would be competent before the Liquidator and if any adverse decision is given by the Liquidator then the provisions for filing an appeal has been made." ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r' in terms of the directions dated 01.08.2017 passed by this Appellate Tribunal. * Two more letters dated 24.09.2018 and 01.10.2018 were issued demanding that the Appellant refund the purported expense fees and payment made to consultant. Aggrieved by the arbitrary fixation of fee and unwarranted recovery letters the Appellant filed CA 1208(PB)/2018 and CA No. 1268 (PB)/2018 before the Adjudicating Authority, which vide Order dated 11.02.2019, directed R-1 to reconsidered fees and take a reasonable decision. * However again no decision was taken by the CoC in terms of the Order of the Adjudicating Authority and meanwhile on 01.05.2019, the 'Corporate Debtor' went into Liquidation. * The Adjudicating Authority in the Impugned Order dated 22.11.2019 directed the Appellant to file a 'Claim' before a Liquidator. * During the pendency of the Appeal, IBBI issued a Notice of Inspection dated 13.02.2020 and the Appellant responded vide Reply dated 19.02.2020 and a Draft Inspection Report dated 31.07.2020 against the Appellant was issued, for which, the Appellant submitted her Reply on 14.08.2020 to the Draft Inspection Report. * It is submitted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....k out of 16 Members of the CoC raised some objections in the third CoC Meeting. Therefore, it was admitted that the CoC has approved the said withdrawal. Only once in the CoC Meeting held on 05.05.2018, the Appellant was requested not to make any further payments to the advisors. * It has been 30 months since the Appellant has handed over the charge of the 'Corporate Debtor' to R-1 and almost 18 months since the Liquidation Order has been passed, however till date no reasonable fee has been fixed to pay the Appellant. The direction given by the Adjudicating Authority to file a 'Claim' before the Liquidator is erroneous as the fee of the RP is the 'CIRP Cost' and cannot be considered as a 'Claim' as defined under Section 3(6) of the Code. Learned Counsel placed reliance on the Judgement of the Hon'ble Supreme Court in Civil Appeal No. 4065/2020 in 'Alok Kaushik' Vs. 'Mrs. Bhuvaneshwari Ramanathan & Ors.'. 4. Submissions of the Learned Counsel representing R-1 and R-3: * During the pendency of the present Appeal, on a complaint filed by the 'Corporate Debtor' through R-3 against the Appellant, the IBBI vide Order dated 14.03.2022 passed strictures against the App....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... commencement date. * The Judgement relied upon by the Appellant in the case of 'Alok Kaushik' (Supra) is not relevant as the issue involved is entirely different. The Judgement has no applicability and is only in the context of the fee of the professionals appointed by the Resolution Professional. Further, the CoC has already decided her fees for her tenure as directed by the Adjudicating Authority vide Order dated 05.07.2018 and secondly a Liquidator was appointed and thus the 'Claim' should be filed before the Liquidator and that there is no error in the Impugned Order passed by the Adjudicating Authority. Assessment: 5. The main issues which arise in this Appeal are: * Whether the Adjudicating Authority was justified in directing the Appellant to file her 'Claim' before the Liquidator as the 'Corporate Debtor' was under Liquidation. * Whether the fee of an RP falls under the definition of a 'Claim' as defined under the Code. * Whether the fee of a Resolution Professional is required to be fixed by CoC, failing which such decisions/determination is to be made by the Adjudicating Authority under the provisions of Section 60(5) of the Code....
X X X X Extracts X X X X
X X X X Extracts X X X X
....33; (d) expenses incurred on or by the resolution professional fixed under regulation 34; and (e) other costs directly relating to the corporate insolvency resolution process and approved by the committee." 14. Of the clauses of Regulation 31, of particular importance to the present case is clause (c) which enunciates expenses incurred on or by the IP to the extent ratified under Regulation 33. Clause (e) refers to other costs directly relating to the CIRP and approved by the CoC. Regulation 33 provides for the costs of the IRP: "33. Costs of the interim resolution professional.- (1) The applicant shall fix the expenses to be incurred on or by the interim resolution professional. (2) The Adjudicating Authority shall fix expenses where the applicant has not fixed expenses under sub-regulation (1). (3) The applicant shall bear the expenses which shall be reimbursed by the committee to the extent it ratifies. (4) The amount of expenses ratified by the committee shall be treated as insolvency resolution process costs. Explanation.- For the purposes of this regulation, "expenses" include the fee to be paid ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e present situation, since it deals with a case where an application is withdrawn under Section 12A of the IBC. The appellant is justified in contending that there must be a forum within the ambit and purview of the IBC which has the jurisdiction to make a determination on a claim of the present nature, which has been instituted by a valuer who was appointed in pursuance of the initiation of the CIRP by the RP. After the NCLAT set aside the CIRP and remitted the proceedings to the NCLT to decide on the CIRP costs, the NCLT held that it was rendered functus officio in relation to the appellant's claim. This, in our view, would be an incorrect reading of the jurisdiction of the NCLT as an Adjudicating Authority under the IBC. In a recent judgment in Gujarat Urja Vikas Nigam Limited vs Amit Gupta and Others, this Court clarified the jurisdiction of the NCLT/NCLAT under Section 60(5)(c) of the IBC in the following terms: "71. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora...Therefore, considering the text of Section 60(5)(c) and the i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bmitted by the investigating authority. If the disciplinary committee is satisfied that sufficient cause exists, it can impose a penalty. The availability of a grievance redressal mechanism under the IBC against an insolvency professional does not divest the NCLT of its jurisdiction under Section 60(5)(c) of the IBC to consider the amount payable to the appellant. In any event, the purpose of such a grievance redressal mechanism is to penalize errant conduct of the RP and not to determine the claims of other professionals which form part of the CIRP costs." 7. In the instant case, vide Order dated 05.07.2018 in CA 428(PB)/2018, the Adjudicating Authority on an Application preferred by the IRP/RP/Appellant herein has directed the CoC to fix the fee of the RP within two weeks. 8. Vide Order dated 11.02.2019 in CA 1208(PB)/2018 which is an Application preferred by the Appellant herein aggrieved by the sum of Rs.40,000/- p.m. fixed as fee, the Adjudicating Authority ordered as follows: "CA-1208(PB)/2018 It has been brought to our notice that the applicant-IRP Reeta Gupta has to be paid Rs. 40,000/- per month. In her place the new RP has been engaged for a fee of....