TaxTMI 
TaxTMI 
2025 (3) TMI 972
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....ts LLP viz IA No.1509/2025 with the following prayer: a) Pass necessary orders clarifying that even after the order dated 7th December, 2023, the Interim Resolution Professional/Respondent No.2 will continue to manage the day-to-day operations of the Corporate Debtor/BIIPL and its Suspended Board of Directors will cease to have control over the affairs of the Corporate Debtor/BIIPL, effective immediately; b) Pass such further order(s), direction(s) or relief(s) as deemed fit and proper by this Hon'ble Appellate Tribunal in the facts of the present case and in the interest of justice. 2. Another IA No.1557 of 2025 is moved by the appellants with following prayer: a) Pass necessary orders clarifying that the CIRP initiated against Bhasin Infotech and Infrastructure Pvt Ltd vide the order dated 04.12.2023 does not bar the management of Bhasin Infotech and Infrastructure Pvt Ltd from filing Writ Petition (Civil) No.26964 of 2024 before the Hon'ble Allahabad High Court and/or taking any decision for the purposes of keeping Bhasin Infotech and Infrastructure Pvt Ltd as a going concern, in light of the order dated 07.12.2023 passed by this Tribunal; and/or ....
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....he relevant portion of the said order is extracted as below:-:- 20. In the light of the above facts and circumstances, and in terms of Section 7(5)(a) of the Code, the instant petition COMPANY PETITION IB (IBC)/646/(PB)/2021 filed by Col. Gautam Mullick & Ors. the Financial Creditors, under section 7 of the Code read with Rule 4(1) of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating CIRP against M/s Grand Venezia Commercial Towers Private Limited (Corporate Debtor 1) and M/s Bhasin Infotech and Infrastructure Private Limited (Corporate Debtor 2) stands admitted and this Adjudicating Authority initiates consolidated CIRP against M/s Grand Venezia Commercial Towers Private Limited and M/s Bhasin Infotech and Infrastructure Private Limited. 21. The petitioner in part-III of the petition has proposed the name of Mr. Mukesh Gupta as the Interim Resolution Professional. Therefore, Mr. Mukesh Gupta, having registration number IBBI/IPA-001/IP-P01494/2018- 19/12254 and email - id [email protected] is hereby appointed as an Interim Resolution Professional (IRP) for both the Corporate Debtor 1 and Corporate Debtor 2. The ....
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.... Adjudicating Authority shall appoint an interim resolution professional within fourteen days from the insolvency commencement date. (2) Where the application for corporate insolvency resolution process is made by a financial creditor or the corporate debtor, as the case may be, the resolution professional, as proposed respectively in the application under section 7 or section 10, shall be appointed as the interim resolution professional, if no disciplinary proceedings are pending against him. 17. Management of affairs of corporate debtor by interim resolution professional. (1) From the date of appointment of the interim resolution professional, - (a) the management of the affairs of the corporate debtor shall vest in the interim resolution professional; (b) the powers of the board of directors or the partners of the corporate debtor, as the case may be, shall stand suspended and be exercised by the interim resolution professional; (c) the officers and managers of the corporate debtor shall report to the interim resolution professional and provide access to such documents and records of the corporate debtor as may be required by....
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....ch other duties as may be specified by the Board. Explanation.-For the purposes of this sub-section, the term "assets" shall not include the following, namely:- (a) assets owned by a third party in possession of the corporate debtor held under trust or under contractual arrangements including bailment; (b) assets of any Indian or foreign subsidiary of the corporate debtor; and (c) such other assets as may be notified by the Central Government in consultation with any financial sector regulator. 19. Personnel to extend cooperation to interim resolution professional (1) The personnel of the corporate debtor, its promoters or any other person associated with the management of the corporate debtor shall extend all assistance and cooperation to the interim resolution professional as may be required by him in managing the affairs of the corporate debtor. (2) Where any personnel of the corporate debtor, its promoter or any other person required to assist or cooperate with the interim resolution professional does not assist or cooperate, the interim resolution professional may make an application to the Adjudicating Authority f....
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....ion- [1992 (3) SCC 1]". In 'Ashok Kumar Tyagi' (supra), in paragraph 18, following proposition has been laid down:- "18. The difference between stay of an Order and quashing of any Order are well settled as noticed above. In event on the stay of the admission of Section 7 Application, the Corporate Debtor is allowed to function and position as was existing prior to 28.10.2022 is restored, there shall be no difference in staying an Order and quashing of an Order. What the Appellants are asking/praying is restoration of the position as was prior to admission of Section 7 Application. We can not accept such request made by the Appellant. The Admission Order of Section 7 Application has only been stayed and not quashed thus the Corporate Debtor can not be permitted to function as it was functioning prior to 28.10.2022." 13. The judgment of 'Ashok Kumar Tyagi' (supra) of this Tribunal does not support the order of the Adjudicating Authority that in view of the stay of CIRP, Resolution Professional has to handover charge of the Corporate Debtor. Any such result of stay of the CIRP shall be disastrous since if the management against whom the CIRP has been initiated is ha....
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....ny direction to hand over the management of the Corporate Debtor to the ex- management and the Adjudicating Authority ought to have relegated to parties to approach the Hon'ble Supreme Court for any further order or direction. It is further to be noticed that the Resolution Professional has not been discharged from the CIRP and even though Resolution Professional cannot take any steps in the CIRP, day-to-day affairs of the Corporate Debtor has to be looked after by the Resolution Professional, ex- management being not in place. Not allowing the Resolution Professional to look after day-to-day affairs of the Corporate Debtor will create a situation where all chances to revive the Corporate Debtor shall be diminished it being not a functioning unit. (Emphasis supplied) 11. Further in Chandra Prakash Vs Naveen Chaudhri, Company Appeal (AT)(Ins) No.440/2022 the Court held as under: 12. As per the scheme of the Code, the Adjudicating Authority, after admission of the application, filed under Section 7, 9 or 10, by an order declare moratorium for the purpose which is referred to in Section 14. Section 14 lays down certain prohibitions which includes the transferring ....
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....tinely done cannot be accepted because of the moratorium and prohibition provided therein. (Emphasis supplied) 12. An issue is raised by the Learned senior counsel for the appellant herein qua locus of applicant of IA No.1509/2025. In this regard the submission of the learned senior counsel for the applicant is the applicant is the holder of 69% shares in the Corporate Debtor and vide this application has also levelled allegations of transfer of Rs.16 crores approx. alongwith some properties of the CD, by its Suspended Directors to their related companies, hence it is argued the applicant is a necessary and proper party and needs to be heard 13. In Ashish Gupta Vs Delagua Health India Pvt Ltd, Company Appeal (AT)(Ins) No.17/2021 this Tribunal held:- 13. The Learned Counsel for the Appellant submitted that intervention on the part of shareholders of the Corporate Debtor company is not permissible while adjudicating a matter under Section 9 of the IBC. Further, it was submitted that since the shareholders and the Corporate Debtor had status of separate legal entities, hence, Respondent No.2 and 3 being shareholders, did not enjoy locus to participate in the Se....
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....s to be heard and it cannot be said it has no locus. Even otherwise we need not dwell upon this issue as even the appellant's application is also for clarification of order dated 07.12.2023. 15. Thus considering the Statute and the law discussed above we find the natural consequence of order dated 04.12.2023 would be the entire management of the affairs of the Corporate Debtor, including preservation and protection of its assets, shall vest with IRP by the legal fiction so created. 16. We are of the considered view that no further steps to be taken would not mean the Board of Directors of the Corporate Debtor shall continue to manage the affairs of the company. At this stage the Ld counsel for the appellant has referred to Quinn Logistics India Pvt Ltd Vs Mack Soft Tech Pvt Ltd, Company Appeal (AT)(Ins) No. 185/2018 wherein vide order dated 08.05.2018 it was held if no RP is functioning then such period shall be excluded from counting of the period of CIRP. We have gone through the judgement. The main issue in it was qua exclusion of some period for counting of the time limits for completion of CIRP, hence would not be relevant for the issue involved herein. The learned senio....