TaxTMI 
TaxTMI 
2025 (3) TMI 972
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....g 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 b) Pass such other order(s) as this Hon'ble Tribunal may deem fit a....
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....nces, 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 consent of the proposed interim resolution professional in Form-2 is taken on record. It is pertinent to mention that IRP has a v....
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....r 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 the interim resolution professional; (d) the financial institutions maintaining accounts of the corporate debtor shall act on the instructions of the interim resolution professional in relation to such accounts and furnish all information relating to the corporate debtor avail....
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....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 for necessary directions. (3) The Adjudicating Authority, on receiving an application under sub-section (2), shall by an order, direct such personnel or other person to comply with the instructions of the resolution professional and to cooperate with him in collection of information and management of the corporate debtor. 20. Management of operations of corporate debtor as going concern. (1) The interim resolution professional shall make every endeavour to protect and preserve the value of the ....
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....or 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 handed over the 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 ....
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....onal 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 of the assets of the Corporate Debtor. Section 17 says that the management of affairs of Corporate Debtor shall vest immediately with the IRP on his appointment and the powers of board of directors are suspended. Section 18 provides for the duties of IRP which includes taking of control and custody of the assets of the Corporate Debtor. Thus, from the aforesaid provisions, it is apparent that with the passing of the order of admission, initiation of CIRP of the Corporate Debtor, appointment of IRP and declaration of moratorium, the powers of the board of directors of the Corporat....
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....icant 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 Section 9 proceedings taken up by the Appellant against the Corporate Debtor company. In support of this contention, reliance has been placed by the Learned Counsel for the Appellant on the judgement delivered by the Hon'ble Supreme Court in Pratap Technocrats (P) Ltd. v. Monitoring Committee of Reliance Infratel Ltd., (2021) 10 SCC 623 and E S Krishnamurthy and Ors. v. Bharath High Tech Builders Pvt. Ltd. Civil Appeal No. 3325 of 2020 (2022) 3 SCC 161 to state that the IBC does not provide for equity jurisdiction. This however cannot come to the aid of the Appellant since the facts of the present case are....
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....hall 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 senior counsel also referred to Rajendra Bhutia Vs Suri Rahul Erstwhile Director of the Corporate Debtor and Another 2021 SCC OnLine NCLT 37504 wherein the facts were the RP did not take possession of the assets during a particular period and the Board of Directors of Corporate Debtor were incharge of its affairs and it was held there cannot be a vacuum in the management of company. However, in this case too the amount so withdrawn by the erstwhile Directors was directed to be refunded alongwith fine to the IRP, hence also is not relevant. 17. Thus we are not in doubt that on 04.12.2023 viz. the day when the IRP was appo....