2022 (5) TMI 1448

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.... application has been filed by the Interim Resolution Professional i.e. Sh. Alok Kaushik of M/s. Cheema Spintex Limited (Corporate Debtor) under Section 12A of the Code read with Regulation 30A of the IBBI Regulations, 2016. 2. It is prayed by the applicant to approve the withdrawal of the application bearing CP (IB) No. 352/Chd/CHD/2018 titled as Kotak Commodity Services Private Limited and Kotak Ginning & Pressing Industries Versus M/s. Cheema Spintex Limited, filed under Section 9 of the IBC, 2016 and was admitted by this Tribunal by order dated 06.10.2021; the IRP may be discharged from the duties of the Interim Resolution Professional; the Suspended Board of Directors may kindly be restored; and the applicant be directed to deposit an amount with the IRP towards the actual expenses incurred by the IRP till the date of approval of this application by the Adjudicating Authority. 3. The brief facts as stated in the application is that the CIRP was initiated against the Corporate Debtor i.e. M/s. Cheema Spintex Limited on 06.10.2021 and moratorium under Section 14 of the IBC, 2016 was declared and the applicant was appointed as Interim Resolution Professional. As per order d....

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....IBC proceedings are proceeding in rem and the claim of all the creditors are to be settled. 5. The following judicial decisions have been filed by Applicant-Mr. Hardayal Singh Cheema, Managing Director on the Suspended Board of Corporate Debtor in IA No. 527/2021 filed by Diary No. 01307/4 dated 15.02.2022 regarding the issue of withdrawal of CIRP proceedings. The same issue is being discussed the references are mentioned below:-     i) The NCLT, Chandigarh Bench in R.K. Satyam Dyes & Chemicals Vs. Alaska Fabtech Pvt. Ltd. (I.A No. 02/2022 in CP (IB) No. 347/Chd/Pb/2019) dated 04.01.2022.     ii) The Hon'ble NCLAT, Principal Bench, New Delhi in Anuj Tejpal, Suspended Director of Oyo Hotels and Homes Pvt. Ltd. Vs. Rakesh Yadav & Anr. (IA No. 815 of 2021 in Company Appeal (AT) (Insolvency) No. 298 of 2021 in CP No. 40/NCLT/AHM/2020) dated 07.07.2021.     iii) The Hon'ble Supreme Court in Kamal K. Singh Vs. Dinesh Gupta & Anr. (Civil No. 4993 of 2021) arising out of order dated 06.08.2021 passed by NCLT, Mumbai Bench in CP No. 1069/I&BP/NCLT/MAH/2020 dated 25.08.2021     iv) The Hon'ble NCLAT, Princ....

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....plicant, within three days of its receipt.     ............     (6) The Adjudicating Authority may, by order, approve the application submitted under subregulation (3) or (5).     (7) Where the application is approved under sub-regulation (6), the applicant shall deposit an amount, towards the actual expenses incurred for the purposes referred to in clause (a) or clause (b) of sub-regulation (2) till the date of approval by the Adjudicating Authority, as determined by the interim resolution professional or resolution professional, as the case may be, within three days of such approval, in the bank account of the corporate debtor, failing which the bank guarantee received under sub-regulation (2) shall be invoked, without prejudice to any other action permissible against the applicant under the Code." 7. As the same is under discussion, the decision of the Hon'ble NCLAT on 07.01.2022 in Ashish Ispat Pvt. Ltd. Ors. Vs. Primuss Pipes & Tubes Ltd. and Ors. cited as MANU/NL/0024/2022MANU/NL/0024/2022. The facts of the said case were similar to the present case, where some financial creditors who were members of the Committee o....

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....r Rule 11 of the NCLT Rules, for withdrawal of the CIRP as per the decision of the Hon'ble Supreme Court in Swiss Ribbons. - Both I.A. 610/2021 and IA 527/2021 were admittedly filed before the constitution of the CoC. 06.11.2021 The first meeting of the CoC takes place. 12. We have heard the learned counsels for the parties and perused the records carefully. 13. The facts of the case at hand are on the lines of the facts discussed in the Ashish Ispat Pvt. Ltd. (Supra) and Anuj Tejpal (Supra). Respectfully following the decision of the Hon'ble NCLAT in these cases, we hold that as the application has been filed prior to the constitution of the CoC, there is no requirement to obtain the consent of the members of the CoC and the CIRP process should be closed. 14. To decide on the reimbursement of expenses incurred by the IRP, this Bench in its order dated 30.03.2022 directed the IRP to file details of expenses incurred in CIRP and the same was filed by the Interim Resolution Professional by Diary No. 01307/6 dated 04.04.2022 as under: S. No. Name of Professional Category Total fees/expenses ratified (Rs.) CoC ratified and voting share (IDBI, SBI....

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....27500 RP per month fees @225000/plus GST ratified by CoC with 100% voting share in the first CoC meeting. 15. Resolution Professional Expenses Expenses of the RP 148237 Expenses incurred and ratified with 100% voting share during the 2nd, 3rd, 4th, 5th and 6th CoC meetings. 16. Interim Resolution Professional Fees IRP Fees for the first month fixed by applicant 218300 The applicant has paid only Rs.92040. The IRP fees for Rs.120360 is stil pending payment. 17. Interim Resolution Professional Expenses IRP Expenses for the first month 77932 The applicant paid only Rs.33950 paid. Rs.43982 is still pending payment and pertains to first month of the CIRP.   15. At the outset, it is noted that the Interim Resolution Professional has himself filed IA No. 510/2021 only after 12 days of commencement of the CIRP but has chosen to continue with normal functions under CIRP without pursuing the IA No. 510/2021 with this Adjudicating Authority. Even if it may be technically correct, it does not sync with the spirit of the Code. It is also noticed that the Directors have not handed over the records and assets to the IRP subsequent t....

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.... Bank of Commerce (Now Punjab National Bank) to prefer its claims to the Interim Resolution Professional with liberty to revive the petition if the earlier party has already settled the matter Accordingly, IA No. 510/2021 is disposed of. IA No. 527/2021 The present IA No. 527/2021 has been filed by Mr. Hardyal Cheema (Managing Director on Suspended Board of Director) of the Corporate Debtor i.e. M/s. Cheema Spintex Limited under Section 60(5) of the IBC, 2016 read with Rule 11 of the NCLT Rules, 2016 seeking for withdrawal and cessation of CIRP proceedings in view of settlement with the Respondent No. 2 i.e. Operational Creditor namely, Kotak Commodity Services Private Limited and Kotak Ginning & Pressing Industries. 2. Since the order is passed in IA No. 510/2021, the prayer for withdrawal and cessation of CIRP proceedings against the corporate debtor i.e. M/s. Cheema Spintex Ltd. under Section 60(5) of the Code read with Rule 11 of the NCLT Rules, 2016, has already been allowed. Hence the present IA No. 527/2021 is rendered infructuous and is disposed of accordingly. IA No. 591/2021 The present IA No. 591/2021 has been filed by Mr. Hardyal Cheema (Managing Director....