TaxTMI 
TaxTMI 
2023 (12) TMI 960
X X X X Extracts X X X X
X X X X Extracts X X X X
.... been filed by Mr. Mukesh Kr. Jain, Resolution Professional of the Corporate Debtor- 'CMYK Printech Ltd.' and Company Appeal (AT) (Insolvency) No. 943-944 of 2023 has been filed by Mr. Amit Goel, Suspended Director of the Corporate Debtor. 2. Brief facts of the case have already been noted in our order dated 06.11.2023 passed in these Appeals while deciding IA No.4138-4139 of 2023 filed by Respondent No.1- Mr. Navin Kumar Upadhyay. For sake of brevity, it shall be suffice to notice paragraphs 3, 4 and 5 of the said order which noticed the background facts, which are as follows:- "3. The Corporate Insolvency Resolution Process was initiated against the Corporate Debtor-CMYK Printech Ltd. vide Order dated 19th January, 2021. One Mr. Ranjeet Kumar Verma was appointed as IRP. On 22nd April, 2021, IRP appointed Respondent No. 1 Mr. Navin Kumar Upadhyay as Executive Editor of The Pioneer Newspaper run by the Corporate Debtor. Company Appeal (AT) Ins. No. 128 of 2021 was filed challenging the Order admitting CIRP by a Suspended Director of the Corporate Debtor which Appeal came to be dismissed by this Tribunal vide its Order dated 16.12.2021. Against the Order dated 16.12.2021....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 930- 931 of 2023 by Resolution Professional and another Company Appeal (AT) Ins. No. 943-944 of 2023 on behalf of Mr. Amit Goel, the suspended director. 5. Both the appeals were heard by this Tribunal and this Tribunal passed an Interim Order on 24th July, 2023. The Adjudicating Authority vide Order dated 30th May, 2023 has issued three directions which have been noticed in paragraph 1 of the Interim Order dated 24th July, 2023 which is to the following effect: "24.07.2023: These two appeals have been filed against the same order dated 30.05.2023 on an I.A. No. 2403 of 2023 filed by Respondent No. 1. Adjudicating Authority has allowed the I.A. and issued direction in paragraph16 to the following effect: .... "16. After considering the rival contentions and perusing the order passed by the Hon'ble Supreme Court on 25.02.2022, we are of the considered view that the Resolution Professional Company Appeal (AT)(Insolvency) No. 930-931 & 943-944 of 2023 Page 2 of 8 has committed an error in not handing over the management of the affairs of the Corporate Debtor to the directors/only management. The actions of the Resolution professional after the order dated 25....
X X X X Extracts X X X X
X X X X Extracts X X X X
....struct the working of the Corporate Debtor carried out under the control of the Applicant Resolution Professional: Pass interim/final directions to the Non-Applicant No. 2 to provide necessary assistance and support to undersigned Resolution Professional in discharge of his duties as per Code; Pass necessary further order/ directions to the applicant Resolution Professional about this status as questioned by the Non-Applicant No. 1 herein; Issue such necessary orders as may be deemed fit in the matter by Hon'ble Tribunal." 5. The Adjudicating Authority by Order dated 30.05.2023 allowed the IA No.2403 of 2023 and issued directions in paragraph 16 which we have already extracted above. The Adjudicating Authority disposed of the IA No.964 of 2023 filed by the Resolution Professional observing that in view of the order passed in IA No.2403 of 2023, no further directions are needed in the matter. 6. Learned Counsel appearing in both the above sets of Appeal have challenged the order dated 30.05.2023 passed in IA. No. 2403 of 2023 and IA No.964 of 2023. The submissions advanced in both set of Appeals being common, we proceed to notice the said submiss....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to take a decision regarding continuance of staff of the Corporate Debtor and to engage any staff during currency of CIRP. 8. Learned Counsel appearing for the Respondent No.1 refuted the submissions of the Appellant and submits that the mere fact that the Hon'ble Supreme Court has stayed the CIRP does not denude the Adjudicating Authority from exercising jurisdiction with all other matters which arise during CIRP. It is submitted that the Respondent No.1 has not challenged the order dated 31.01.2023 in Civil Appeal. It has only filed an IA to initiate Contempt Proceeding against the Resolution Professional who has violated the order dated 25.02.2022, on which application, no order has yet been passed. It is submitted that the Respondent No.1 has been continuing as Executive Editor and even after 01.02.2023, he has continued as Executive Editor which is apparent from the publication of the newspaper where name of the Respondent No.1- Mr. Navin Kumar Upadhyay has been mentioned as Executive Editor. It is submitted that the Resolution Professional has no jurisdiction to remove the Respondent No.1 as Executive Editor and appoint another person in his place. The Adjudicating Author....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the prayers made in the application by the Respondent No.1 cannot be allowed. In order dated 06.11.2023 from paragraphs 16 to 22, following has been observed:- "16. The email which has been challenged by means of Application was issued by the Resolution Professional for carrying out and running the Corporate Debtor. Mr. Narender Kumar the Printer and Publisher has died hence the arrangement was to be made with the RP. By our order dated 10th August, 2023, we have already directed that "for day to day function Resolution Professional can carry its duty and ensure that the Corporate Debtor runs as a going concern for which he may take steps expeditiously." 17. The CIRP having been stayed by Hon'ble Supreme Court, no further steps in the CIRP can be taken by the RP or CoC. We have already stayed the Order of the Adjudicating Authority by which direction was issued for ex-management to be reinstated on an application filed by Respondent No. 1. There being no management in place RP has to carry out and run the Corporate Debtor as a going concern and the email dated 20th August, 2023 which has been issued by the RP was for purpose and object of running the corporate deb....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... allowed looking to the sequence of the facts and pleadings of the parties on record. 22. However, looking to the fact that present Appeals have been filed against the Order passed by the Adjudicating Authority dated 30th May, 2023 we are of the view that both these Appeals need to be finally decided more so when challenge to the order of this Tribunal affirming the CIRP are pending before the Hon'ble Supreme Court. We direct that both these Appeals being C.A.(AT) Ins. No. 930-931 and 943- 944 of 2023 be listed for 'Final Hearing' on 16th November, 2023 at 02:00 PM." 11. The Adjudicating Authority by the impugned order has issued direction to the Resolution Professional to immediately handover the management of the Corporate Debtor to the CEO/Management of the Corporate Debtor. In the order impugned, the only issue which was noted by the Adjudicating Authority for consideration was the issue as noted in paragraph 11 of the order, which reads as follows:- "11. From the above facts, the only issue which emanates for consideration and determination by this Tribunal is as to whether the Resolution Professional ought to have handed over the affairs of the Corporate ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....charge, it is prone to misuse the assets and the assets shall be diminished, which may adversely affect the creditors of the Corporate Debtor. In view of the stay of the CIRP, it is true that the Resolution Professional cannot take any further steps in the CIRP of the Corporate Debtor and has to stay his hand from proceeding any further in the CIRP and await the order of the Appellate Court. The direction to the Resolution Professional in the impugned order to handover the Corporate Debtor to the ex-management is wholly unjustified and has to be set aside. 14. Much emphasis has been given by the Learned Counsel for the Respondent No.1 that one of the directions issued by the Adjudicating Authority's impugned order was to declare all actions taken by the Resolution Professional after the order dated 25.02.2022 as null and void. It is submitted that since the Respondent No.1 was not permitted to function w.e.f. 01.02.2023 by the Resolution Professional, the said order also has to go and Respondent No.1 should be allowed to function as Executive Editor. We have already noticed that a separate IA being IA No.4138-4139 of 2023 has been filed by the Respondent No.1 praying the relief ....