TaxTMI 
TaxTMI 
2023 (12) TMI 570
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.... Adjudicating Authority has allowed the Application filed under Section 27 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "The Code") for replacement of the Appellant with another Resolution Professional-Mr. Ankit Goel. 2. When this Appeal was taken by this Tribunal on 01st November, 2023, liberty was granted to the Appellant to delete the Respondent-NCLT which was impleaded as Respondent No. 1. An I.A. No. 5629 of 2023 has been filed by the Appellant praying for deletion of Respondent No. 1 and Impleadment of Respondents No. 1 to 8 in the Appeal. An amended Memo of Parties filed along with I.A. No. 5629 of 2023 is taken on record and the array of parties are permitted to be amended as prayed. 3. An I.A. No. 5665 of 2023 has also been filed by the Appellant for carrying out consequential amendment in pursuance of the liberty granted on 01st November, 2023 which I.A. is also allowed. 4. Brief facts, sequence and events of the case necessary to be noticed for deciding this Appeal are:- i. By order dated 28th February, 2022, CIRP commenced against the Corporate Debtor-M/s. Modern Syntex India Limited. The Appellant was appointed as the IRP wh....
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....I to lodge an FIR with regard to stripping off of the assets of the Corporate Debtor in June, 2018 which request was not accepted by the Member of the CoC hence the SUUTI decided to replace the Appellant. The Appellant visited the factory premises and found stripping off of the assets in June, 2018 for which Appellant requested to take appropriate action including lodging an FIR which was not acceded to by the CoC which was reason for replacement of the Appellant. It is further submitted that Appellant was not given an opportunity to place all relevant facts before the Adjudicating Authority when the Order was passed. It is further submitted that the Adjudicating Authority has relied on Joint Lenders Meeting dated 28th August, 2023 whereas it has not taken note of minutes of the COC Meeting dated 01st September, 2023 where the agenda for replacement was considered along with all other relevant materials. It is submitted that in the agenda for replacement of the Appellant by substituting another Insolvency Resolution Professional name of Anil Goel was mentioned whereas the Adjudicating Authority approved the name of Ankit Goel. 7. Learned Counsel for the Respondents refuting the ....
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.... proposed:" 11. After the aforesaid 18th CoC meeting when Agenda for Replacement was not considered, Joint Lenders Meeting took place on 28th August, 2023 which was attended by all the three members of the CoC where following resolution was passed: "MODERN SYNTEX (INDIA) LTD. (MSIL) NCLT Case no. (IB)-39(PB)/2018-CIRP as per NCLT Order dated 28.03.2022 Minutes of the Joint Lenders Meeting held on 28.08.2023 28.08.2023 Modern Syntex (India) Ltd. (MSIL) is in NCLT. The present RP Shri Partha Sarthy Sarkar in the Agenda of the COC meeting held on 26.07.2023 requested for change in Resolution Professionals. Therefore, it is decided in the Joint Lenders meeting of SUUTI, UTI (MF) and IIBI held on 28.08.2023 at 2:30 p.m. that the present Resolution Professional (RP)Mr. Partha Sarthy Sarkar is t obe replaced by a new RP. We have asked quotations from four RPs. And we have received quotations from following four RPS. 1. Mr. Mohinder Singh, Stellar Insolvency Professionals LLP 2. Mr. Ankit Goel, AAA Insolvency Professionals LLP 3. Mr. Divyesh Desai, Moore Singhi Advisors LLP 4. Mr. Chirag Shah, C.R.....
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....ees and other related CIRP expenses to which the RP has expressed his inability, the CoC will proceed to replace the present RP with a new resolution professional of M/s Modern Syntex (India) Limited, Mr. Anil Goel having Registration No. IBBI/IPA- 001/IP-P-02671/2022-2023/14088 as proposed by the COC members prospectively, subject to compliance of section 27 of the Insolvency and Bankruptcy Code, 2016." 14. It is not necessary for us to enter into as to whether there were any other resolutions were passed regarding payment of remuneration and fee to the Appellant till confirmation of the other Resolution Professional or not. It is undisputed on 01st September, 2023 CoC with 100% vote it was decided to replace the Appellant. 15. Mr. Adish Agarwalla, Learned Sr. Counsel has made much emphasis on the submission that it was the Appellant who wrote several emails to SUUTI for taking legal action for stripping off of the assets of the Corporate Debtor in June, 2018. It is submitted that on June, 2018 illegal auctioning of the assets took place and the Appellant requested to take legal action including lodging FIR which was not acceded to by the SUUTI which resulted in replacement ....
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....lution was passed by the CoC resolving to replace the Resolution Professional, it is not open for the Resolution Professional to question the reasons and ask Adjudicating Authority to adjudicate upon the reasons which persuaded the CoC to pass the Resolution. 19. This Tribunal in a recent Judgment delivered on 05th December, 2023 in Company Appeal (AT) Ins. No. 1439 & 1440 of 2023, Kairav Anil Trivedi, IRP of Parenteral Drugs India Ltd. Vs. State Bank of India & Anr. has examined the similar contentions raised on behalf of the Resolution Professional/IRP which was replaced by the CoC. In the said case, Resolution was passed by CoC on 06.10.2023 to replace the IRP with another RP which was approved by the Adjudicating Authority on 17.10.2023 which order was challenged by the IRP in this Tribunal. This tribunal after noticing the contention of the parties after referring to Section 27 laid down following in Paragraph 11 and 12: "11. Learned Counsel for the Respondents has placed reliance on the judgment of this Tribunal in Company Appeal (AT) (Insolvency) No.1037 of 2022- "Sumant Kumar Gupta vs. Committee of Creditors of M/s. Vallabh Textiles Company Ltd." where challenge....
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....IBC deciding to replace the IRP, IRP cannot be heard in questioning the resolution on the ground that present was not a case where IRP could have been replaced by another Resolution Professional. The submission of the Appellant is that since the applications filed by the Appellant being Contempt Application No.7 of 2023 and IA No.2594 of 2023 for CIRP cost of Rs.76 lacs and odd are still pending, Adjudicating Authority ought not to have been decided IA Nos.1874 of 2023 and IA No.2860 of 2023. The Adjudicating Authority itself in the order has indicated that the Applications IA No.2591 of 2023 and Contempt Case No.07 of 2023 which are pending adjudication were to be heard on 26.10.2023 on which date Applications were adjourned. It has been submitted by the Counsel for the Respondents that IA No.2591 of 2023 and Contempt Case No.7 of 2023 also been heard by the Adjudicating Authority and order has been reserved on 26.10.2023." 20. This Tribunal upheld the order dated 17.10.2023 approving the replacement of the Appellant and dismissed the Appeal. 21. Now we come to the submission of the Appellant that in the Resolution dated 01st September, 2023 name of Anil Goel was mentioned w....