TaxTMI 
TaxTMI 
2024 (7) TMI 1077
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Aggrieved by which order this Appeal has been filed. 2. Brief facts of the case necessary to be noticed for deciding the Appeal are: (i) Corporate Insolvency Resolution Process ("CIRP") against the Corporate Debtor Jet Airways (India) Ltd. ("Jet Airways") commenced by order dated 20.06.2019. Operations of Jet Airways were stopped since April 2019. Claims were filed by the workmen, employees and other stake holders. (ii) The Interim Resolution Professional ("IRP") prepared an Asset Preservation Team to ensure various compliances required on behalf of the Corporate Debtor. On the recommendation of the Head of Department of various Department a team was constituted, which also consisted of 103 employees. The 103 employees, who were part of Asset Preservation Team, insisted for some lumpsum payment for working in the Asset Preservation Team. Due to various uncertainties, certain lumpsum payment was made with the approval of Committee of Creditors ("CoC") to 103 employees. Subsequently, 103 employees also left the Asset Preservation Team. (iii) The Resolution Professional ("RP") published the third List of Creditors in which claim of 103 employees, several....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was made by the respective heads of department/employee associations and was based on the expertise of each employee in their area of responsibility. 5) Further, it is submitted that those Employees which were part of the Asset Preservation Team have been paid and rest of the employees were not part of the said team; hence, they were not entitled to any payment after commencement of Corporate Insolvency Resolution Process. Further, no employee, including those forming part of Assets Prevention Team, have been paid any dues towards pre-CIRP claim. 6) Counsel for Applicant submits that there are some Employees who were part of the Asset Preservation Team and still they have not been paid. However, Ld. Counsel for the Resolution Professional submits that this contention is incorrect and they were only engaged as part of the Asset Preservation Team and accordingly, they have been paid as agreed in terms of their engagement as part of Asset Prevention Team, however, even these employees can not claim payment of Pre-CIRP dues, which are to be paid in accordance with the Plan, if any approved in this case." (vi) Challenging the order, rejecting the Application, this A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ctober 21, 2022 in CA (AT)(Ins) 752 of2021. 4. I say that an amount of approximately INR 5.4 crore was paid to the said 103 APT members as lump sum payment in the circumstances and for the reasons already set out in the affidavit in reply ("Reply") dated March 13, 2024, filed by answering Respondent. The total claim waived off by the said 103 APT members is approximately INR 7.9 crores. 5. In view of the above, I hereby clarify that in view of this waiver, there shall be no payment to the said 103 APT members at the time of distribution of monies during the implementation of the approved Resolution Plan of Jet Airways. The names of the said 103 APT members have already been set out at Annexure A to the Reply. A copy of the aforementioned list of the said 103 APT members has been hereto annexed and marked Annexure -A." 7. The observation of the Appellant that 103 employees, who have made certain lumpsum payment shall be entitled to double payment has been clearly dispelled by the affidavit filed by the RP, who is the Chairman of the Monitoring Committee constituted for implementation of the Resolution Plan. We have no reason to doubt the statement made in the af....
X X X X Extracts X X X X
X X X X Extracts X X X X
....certificate (post holders); v. Cost and availability & willingness of the individual; 16. During the above meetings, preliminarily, approximately 301 employees of the Corporate Debtor were identified as key personnel by the heads of department and engineering associations. These identified key personnel were necessary to preserve the assets of the Corporate Debtor. On account of the poor financial situation of the Corporate Debtor, the Respondent proposed that all the members of the APT would be required to take a substantial haircut and would be paid amounts ranging from 30% to 70% of their monthly salary. The terms proposed by the Respondent, acting on behalf of the Corporate Debtor, were communicated to the identified employees by the heads of department. However, as the Corporate Debtor had not paid its employees dues (including those of the identified APT) prior to the insolvency commencement date ie. June 20, 2019, 103 employees from the APT expressed their unwillingness to continue working for the Corporate Debtor, through their respective heads of department. The Respondent requested the heads of departments to inform these 103 employees that in the event ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t submits that it is this waiver and/or concession obtained from the 103 employees that is mischaracterized as a payment of pre- CIRP dues of the said employees. In addition to the above, the said APT members are free to approach the successful resolution applicant to seek payment of their dues arising for the pre-CIRP period outside the scope of the resolution plan amount 20. The Appellant inter alia makes three erroneous allegations in the present Appeal, first, that the APT was formed arbitrarily and preferential payments were made to the 103 members of the APT, second, that the lump sum payments made to the 103 members of the APT was in settlement of their pre-CIRP dues and, third, that the claims of the 103 members of the APT were included in the list of creditors, and hence the said members of the APT would be doubly paid as compared to other employees/ workmen. *** *** *** 23. Insofar as the lump sum payments made to the 103 unwilling members of the APT is concerned, the Respondent was constrained to incentivize the said members of the APT to continue to work for the Corporate Debtor as their services were not avoidable and squarely mandatory for t....