TaxTMI 
TaxTMI 
2022 (11) TMI 1192
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....rections: "10. Orders 10.1 In sum, - (a) On prayer (a): The prayer for refund of the Liquidator's fee of Rs.1.5 crore has become infructuous since the refund has already taken place vide cheque dated 03.11.2020, though under compelling circumstances (para9.2 and 9.3 supra). (b) On prayer (b): The prayer for inclusion of a representative of the workmen and employees on the SCC is not acceded to, since the workers at this point of time do not have a subsisting claim, and we have held that there is a symbiotic relationship between regulations 31 and 31A of the Liquidation Regulations. The claim for inclusion in the SCC will subsist only if there is inclusion in the list of stakeholders and not de hors it (para 9.6 , 9.10 and 9.11 supra). (c) On prayer (c): The prayer for direction to the Liquidator to take steps to recover the sum of Rs.26 crore paid to the financial creditors cannot be acceded to at this stage, since the very order whose implementation is sought, i.e., the order dated 26.06.2020 passed by this Adjudicating Authority, is under challenge before the Hon'ble NCLAT. However, the financial creditors are hereby directed t....
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.... following reliefs: "(a) An order directing the Liquidator to immediately refund the fees of 11.5 crore (approx) taken by the Liquidator for or on account of illegal distribution of funds among the creditors of the corporate debtor to the bank account of the corporate debtor along with interest; (b) Direction upon the Liquidator to immediately include a representative of the Applicant in the Stakeholders' Consultation Committee (SCC) of the Corporate Debtor and the Liquidator be directed not to take any decision without including the representative of the Applicant in the SCC of the Corporate Debtor; (c) Necessary orders directing the Liquidator to immediately take steps and direct the financial creditors to immediately depositT26 crore (approx) in an interest-bearing account of the corporate Debtor in accordance with the order dated 26.06.2010 (sic 26.06.2020) passed by NCLT Kolkata Bench; (d) An appropriate order directing the Liquidator to immediately recover the sum of money illegally recovered by the Banks/Lenders/Financial Creditors in violation of the moratorium order and in violation of section 14 of IBC, 2016 as more particularly hel....
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....f the 'Corporate Debtor'. * The Liquidator has wrongfully included six 'Financial Creditors' in the SCC, as per Regulation 31-A of the Regulations, the Liquidator can at maximum allow only four 'Financial Creditors'. This itself shows that the Liquidator was biased towards the 'Financial Creditor'. * Regulation 19(4) of the Liquidation Process, Regulations, 2016 states that the Liquidator may admit the Claim of a Workman or an Employee on the basis of the Books of Account of the 'Corporate Debtor', if such Workman or Employee has not made a Claim. Therefore, even if the Workers hadn't file a Claim on the basis of a Books of Account, the same can be incorporated by the Liquidator. There are more than 600 permanent Employees and since the 'Corporate Debtor' is 'a Going Concern', the Employees will have gratuity Claims. * Regulation 28 of the Liquidation Process, Regulations, 2016 explains the 'debt' payable in future time and one such 'debt' is gratuity and therefore the Employees will have a Claim as regards to gratuity in the future whenever they retire and it is because of this reason, for the chart/table in Regulation 31-A(2) of Liquidation Process, Reg....
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.... "iii. Representation of VEWA in the Stakeholders' Consultation Committee ('SCC') of the Corporate Debtor. This is to bring into your notice that as per regulation 31A "Constitution of SCC". (1) The liquidator shall constitute a consultation committee within sixty days from the liquidation commencement date, based on the list of stakeholders prepared under regulation 31, to advise him on the matters relating to sale under regulation 32. (2) .... The Liquidator duly filed the list of stakeholders along with asset memorandum and Preliminary Report before the Hon'ble NCLT Kolkata Bench. Since there is no existence of any claim from the side of Varrsana Employee Welfare Association hence you cannot be a part of SCC as per Regulation 31A of Liquidator Regulations." * The basic ground for rejecting the plea of the Appellant was only because there was no unpaid Claim of the Appellant with the Liquidator and the Company is 'a Going Concern'. Employee can receive gratuity payment after 5 years of service of superannuation on retirement or resignation or in the case of death and accident or occurrence of any such event. However, in the instant c....
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....is accordingly dismissed. 5. Pending application, if any, stands disposed of." (Emphasis Supplied) From the aforenoted Order, it is clear that the 'Corporate Debtor' is being conducted as 'a Going Concern' and that the Banks would return the money if they are not entitled in accordance with Regulation 43 of the IBBI (Liquidation Process) Regulations, 2016. 7. Now we address to the main contention of the Learned Counsel for the Appellant that they ought to have been included as a representative in the SCC (a) whether they have a Claim or not; and (b) in the present case, it is submitted that they have a subsisting Claim as they had raised a Claim for the 'Notice Period'. It is an admitted fact that the Liquidator constituted the SCC on 05.10.2019 based on the list of SCC filed before the Adjudicating Authority, detailed as hereunder: Name of Stakeholder Amount of Claims Provisionally Admitted A 1. Indian Oversea Bank 2. UCO Bank 3. Central Bank of India 4. Corporation Bank 1. 2,60,37,90,616 2. 2,28,58,26,031 3. 1,21,83,03,577 4. 1,03,59,21,745 B Mahavir Tie Up Pvt. Ltd. ....
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....secured or unsecured, if applicable, (c) the details of the stakeholders, and (d) the proofs admitted or rejected in part, and the proofs wholly rejected. (2) The liquidator shall file the list of stakeholders with the Adjudicating Authority within forty-five days from the last date for receipt of the claims.] (3) The liquidator may apply to the Adjudicating Authority to modify an entry in the list of stakeholders filed with the Adjudicating Authority, when he comes across additional information warranting such modification, and shall modify the entry in the manner directed by the Adjudicating Authority. (4) The liquidator shall modify an entry in the list of stakeholders filed with the Adjudicating Authority, in the manner directed by the Adjudicating Authority while disposing off an appeal preferred under section 42. (5) The list of stakeholders, as modified from time to time, shall be- (a) available for inspection by the persons who submitted proofs of claim; (b) available for inspection by members, partners, directors and guarantors of the corporate debtor; (c) displayed on the website, if....
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....e consultation committee. (4) If the stakeholders of any class fail to nominate their representatives, the required number of stakeholders with the highest claim amount in that class shall be included in the consultation committee. (5) Subject to the provisions of the Code and these regulations, representatives in the consultation committee shall have access to all relevant records and information as may be required to provide advice to the liquidator under sub-regulation (1). (6) The liquidator shall convene a meeting of the consultation committee when he considers it necessary and shall convene a meeting of the consultation committee when a request is received from at least fifty-one percent of representatives in the consultation committee. (7) The liquidator shall chair the meetings of consultation committee and record deliberations of the meeting. (8) The liquidator shall place the recommendation of committee of creditors made under sub regulation (1) of regulation 39C of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, before the consultation committee for its info....