TaxTMI 
TaxTMI 
2022 (10) TMI 739
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.... IA No. 300/2021 :Dr. Rajansh Thukral, Advocate ORDER Per : Subrata Kumar Dash, Member (Technical) IA No.300/2020 In the present application, the applicant is seeking direction against Resolution Professional to release the amount due towards Gratuity, Leave Encashment and salary during the CIRP of the corporate debtor as the same does not form part of the liquidation estate of the corporate debtor. In the present matter, this Adjudicating Authority has admitted the petition i.e. CP (IB) No.174/Chd/CHD/2018 and initiated Corporate Insolvency Resolution Process(CIRP) in respect of the corporate debtor vide order dated 28.02.2019. 2) The brief facts submitted by the applicant in the instant application are as follows: 2.1 It is submitted that the applicant has worked in the corporate debtor as AGM Accounts and Finance for 7 years. The HR Department of the corporate debtor served the applicant a notice for termination of services vide email dated 19.04.2019. The applicant replied to the email of the respondent and requested full and final clearance of pending dues viz. Gratuity, Leave Encashment and pending salary. Copy of emails dated 13.05.2019, 17.05.2019 and 18.05.2019 ....
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....of Gratuity Act, 1972 and also on the availability of the fund in this regard. 3.4 It is further stated that Gratuity liability, if any, cannot be part of liquidation estate since only assets can be part of liquidation estate. The respondent contends that had there been any gratuity fund of the corporate debtor as contemplated u/s 36(4)(a)(iii) of IBC or section 4A of the Payment of Gratuity Act, 1972, only then the issue of inclusion or non-inclusion in liquidation estate would arise. In this case the corporate debtor has not created a fund for payment of gratuity. 4) We have heard the learned counsel for the applicant and respondent-Resolution Professional. 5) In the present case, the CIRP was initiated on 28.02.2019 and the applicant was terminated on 18.05.2019 after a decision in this regard taken by the CoC, subsequently an application was moved by applicant i.e.,CA No. 411/2019 before this Bench against the said termination, and the same was dismissed with liberty to the applicant to prefer any claim with regard to his employment dues, in accordance with Law. The contention of the Respondent that the email mentioned in Para 3.1 have been considered by this Bench, is no....
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....sis supplied) 8) In view of the aforementioned decision we hold that in the instant matter, the Resolution Professional cannot be directed to make payment of gratuity to the applicant as there is no gratuity fund created by the corporate debtor. As regards the salary and leave encashment during the period of CIRP, the same pertains to the amounts payable to an employee for services rendered during the CIRP. In this connection, these expenses clearly fall within the definition of insolvency resolution process cost as defined in section 5(13)(c) of the IBC, 2016. In this case,a reference is made to the decision of the Hon'ble Supreme Court in the case of Sunil Kumar Jain and others Vs. Sundaresh Bhatt and others (2022) ibclaw.in 23 SC holding that the Wages/Salaries of the Workmen/Employees for the period during CIRP can only be included in the CIRP costs if it is established that the IRP/Resolution Professional managed the operations of the Corporate Debtor as a going concern during the CIRP and that the concerned workmen/employees actually worked during the CIRP. The Resolution Professional is mandated to make provisions to meet such expenses under the code. It is also seen t....
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.... applicant-Resolution Professional and Ssangyong Rexton having registration No. CH01BC3341 is with suspended director of the company namely Mr. Sukhinder Singh and he has been performing various duties of a director and he has also been drawing salary from the company and the respondents are not liable to return the said vehicle to the company. Further, it is stated that the vehicle in question was not in a working condition and till date it is not in working condition and the respondent has never objected to the Resolution Professional to take possession vehicle in possession however the same is not taken due to non-working condition. 3.2 It is further submitted that the present application is not maintainable as recovery of rent, eviction of tenants are outside the domain of this Adjudicating Authority. For the above, reliance has been made on the decision of Hon'ble NCLT Mumbai Bench in case titled as "Asset Reconstruction Company (India) Limited V. Precision Fasteners Limited bearing CP(IB) No. 1339/NCLT/MB/2017 and further reliance has been made on the decision taken by Hon'ble Supreme Court in the case of Embassy Property Developments Private Limited V. State of karnataka ....
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....b-section (1), the resolution professional shall undertake the following actions, namely:- (a) take immediate custody and control of all the assets of the corporate debtor, including the business records of the corporate debtor; 7) Under the provisions of the Code, the Resolution Professional is clearly mandated to take possession and to preserve and protect the assets of the corporate debtor. In the present case, the two vehicles should have been in the custody of the Resolution Professional right after the initiation of the CIRP. Furthermore, the respondent's reliance on the decision of the Hon'ble Supreme Court in the case of Embassy Property Developments Private Limited (supra) does not further his case. For the sake of clarity, the relevant part of the said decision is extracted below: " If NCLT has been conferred with jurisdiction to decide all types of claims to property, of the corporate debtor, Section 18(F)(vi) would not have made the task of the interim resolution professional in taking control and custody of an asset over which the corporate debtor has ownership rights, subject to the determination of ownership by a court or other authority...Section 25(1) and 25....