TaxTMI 
TaxTMI 
2025 (7) TMI 644
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....cates for R-1. Mr. Arun Kathpalia, Sr. Advocate with Ms. Misha, Mr. Siddhant Kant, Ms. Maulshree Shukla, Mr. Yugal Jain, Ms. Gayathri Balasubramanian, Ms. Diksha, Advocates for R-2 (CoC). Mr. Rishav Banerjee, Mr. Utsav Trivedi, Ms. Kiran Sharma, Ms. Manini Roy, Ms. Nandini Acharya, Ms. Pooja Chakraborti, Advocates for R-3. Ms. Manju Bhuteria, Sr. Advocate with Mr. Saurav Jain, Advocate for AGI Greenpac Mr. Pranjit Bhattacharya, Ms. Salonee Shukla, Advocates for Exclusive Capital Ltd. Mr. Raghenth Basant, Sr. Advocate with Mr. Mudit Gupta, Ms. Sonali Jain, Ms. Kaushitaki Sharma, Mr. Vinayak Sharma, Advocates for Intervener. For the Appellant : Mr. Arun Kathpalia, Sr. Advocate with Ms. Misha, Mr. Siddhant Kant, Ms. Maulshree Shukla, Mr. Yugal Jain, Ms. Gayathri Balasubramanian, Ms. Diksha, Advocates For Respondents : Mr. Joy Saha, Sr. Advocate with Mr. Aditya Shukla, Ms. Pratiksha Sharma, Mr. Ritu Chaudhary, Mr. Ayush Jain, Mr. Mukesh Kumar, Advocates for R-1 Mr. Vikram Wadhera, Ms. Smriti Churiwal, Mr. Jaiveer Kant, Advocates for R-2 (RP). Mr. Rishav Banerjee, Mr. Utsav Trivedi, Ms. Kiran Sharma, Ms. Manini Roy, Ms. Nandini Acharya, Ms. Pooja Chakraborti, ....
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.... vide its judgment and order dated 29.01.2025 decided Civil Appeal No. 6177 of 2023 filed by Independent Sugar Corporation Ltd., another Resolution Applicant as well as other Appeals. The Hon'ble Supreme Court vide its judgment dated 29.01.2025 set aside the order of the Adjudicating Authority as well as the order of this Tribunal approving the Resolution Plan of AGI Greenpac Pvt. Ltd. Hon'ble Supreme Court held that as prior approval by the CCI as required by Section 31 has not been obtained by AGI Greenpac Pvt. Ltd., Resolution Plan could not have been approved. Hon'ble Supreme Court issued direction to reconsider the Resolution Plan of Independent Sugar Corporation Ltd. and any other Resolution Plans which possessed the requisite CCI approval as on 28.10.2022. After the order of the Hon'ble Supreme Court, on 30.01.2025, a show cause notice was issued by the IBBI to the Resolution Professional. In consequence of the order of the Hon'ble Supreme Court dated 29.01.2025, the Resolution Plan of Independent Sugar Corporation Ltd. was approved on 04.02.2025. On 07.03.2025, Respondent No.1, Operational Creditor filed Intervention Petition No.5 of 2025 seeking intervention as well as rem....
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....ent Sugar Corporation Ltd., one of the Respondents in the Appeal. Shri Raghenth Basant, Learned Senior Counsel for the Intervenor (Promoter). We have also heard Learned Counsel appearing on behalf of the Intervenor- HNG Industries Thozhilalar Nalasangam. 4. We shall notice first submission advanced by Learned Counsel for the Appellant in Appeals filed by the Resolution Professional and Appeals filed by the Committee of Creditors. 5. Learned Senior Counsel appearing for the Appellant (Resolution Professional) challenging the impugned order submits that the Learned Judicial Member committed error in passing the order dated 30.04.2025 directing IBBI to remove the Resolution Professional relying on Sections 97 and 98 of the IBC which provisions are not attracted in CIRP under Part II whereas those provisions were only relevant for CIRP under Part III. The very basis of the order of the Judicial Member is erroneous and unfounded. It is submitted that the Learned Judicial Member in its opinion dated 30.04.2025 has also erroneously taken the view on bye-law 23A of Model Bye-Laws under Schedule II of the IBBI(Model Bye-laws and Governing Body of Insolvency Professional Agencies) Regu....
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....Corporation Ltd., which was indeed has been approved by the CoC on 04.02.2025 and nothing was required to be done by the Resolution Professional except to bring the approval of the Resolution Plan before the Adjudicating Authority for passing the necessary orders. It is submitted that the Hon'ble Supreme Court by its order dated 16.05.2025 in the Review Petition has directed the completion of entire process within 6 weeks, but the order passed by the Adjudicating Authority tends to create a situation in which timeline fixed by the Hon'ble Supreme Court are difficult to be complied with. The submission of the Counsel for the Respondent No.1 that the Appellant has no locus to file this Appeal is wholly misconceived. The directions have been passed by the Adjudicating Authority to the IBBI to remove the Appellant which can very well be questioned and challenged by the Appellant. It is submitted that the Resolution Professional is taking every steps to ensure the compliance of the direction passed by the Hon'ble Supreme Court dated 29.01.2025 as well as 16.05.2025. Reliance on First Information Report filed against the Appellant is misplaced since neither any charge sheet has been file....
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....he Corporate Debtor only with intent to delay and derail the CIRP process and to ensure that the process is not completed within the time allowed by the Hon'ble Supreme Court. It is submitted that the Learned Judicial Member has taken an erroneous view in its opinion dated 30.04.2025 and further the Adjudicating Authority committed error in passing order dated 13.06.2025 which is unsustainable. It is submitted that the Respondent No.1 has no locus to intervene in the CIRP and Intervention Application filed with motive to scuttle the CIRP. 7. Shri Joy Saha, Learned Senior Counsel appearing for the Respondent No.1, the Operational Creditor who had filed the Intervention Petition No.5 of 2025 has supported the impugned order and submits that the Resolution Professional has no locus to file these Appeals. It is submitted that on suspension of AFA w.e.f. 30.01.2025 after issuance of show-cause notice issued by the IBBI on the complaints filed against the Resolution Professional with respect to the Corporate Debtor, Resolution Professional is clearly debarred from continuing as the Resolution Professional of the Corporate Debtor. It is further submitted by the Counsel for the Responde....
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....on'ble Supreme Court while passing the order dared 29.01.2025 was never made aware of the suspension of the Resolution Professional and the direction of the Hon'ble Supreme Court cannot be treated to mean that the Supreme Court has permitted Girish Shriram Juneja to continue as Resolution Professional. 8. Shri Rishav Banerjee, Learned Counsel for Independent Sugar Corporation Ltd. supported the submissions of the Appellant and submits that the Resolution Plan of Independent Sugar Corporation Ltd. has been approved by the CoC on 04.02.2025 and after the order dated 16.05.2025 of the Hon'ble Supreme Court on 10.06.2025. It is submitted that the 6 weeks' time has already expired on 27.06.2025. The Resolution Plan approval application needs to be taken and decided by the Adjudicating Authority. It is submitted that it is the CoC and not the Resolution Professional who has approved the Resolution Plan. Resolution Professional has no role except to place the Resolution Plan before the CoC. It is submitted that the Respondent No.1 is raising the above objection at the instance of promoters of the Corporate Debtor. It is submitted that the Counsel for the Respondent No.3 also adopt the ....
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.... Petition No.05 of 2025 was filed by the Respondent No.1, an Operational Creditor having 0.20% debt of the total debt of the Corporate Debtor. As noted above, the CIRP process against the Corporate Debtor had commenced on 21.10.2021. In the CIRP process, the Resolution Plan of AGI Greenpac Pvt. Ltd. was approved on 27.10.2022 which was approved by the Adjudicating Authority by an order dated 28.04.2023 against which several Appeals were filed with this Tribunal which Appeals were dismissed by judgment and order dated 18.09.2023 challenging which order further Appeals were filed in the Hon'ble Supreme Court being Civil Appeal No.6177 of 2023 titled as "Soneko Marketing Pvt. Ltd. v/s Mr. Girish Sriram Juneja & Ors." with other Appeals. The Hon'ble Supreme Court allowed the Appeals vide judgment and order dated 29.01.2025 in "Independent Sugar Corporation Ltd. v. Girish Sriram Juneja & Ors.- (2025) 5 SCC 209" with other Appeals. The Hon'ble Supreme Court rejected the Resolution Plan of AGI Greenpac Pvt. Ltd. on the ground that prior approval of the CCI was not obtained. It is useful to extract paragraphs 152 and 153 which is as follows:- "152. Therefore, a balance between the....
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....the respondents including decisions taken by the Committee of Creditors (CoC) starting from September 30, 2022 and action initiated after the order dated 29th January 2025 passed by the Hon'ble Apex Court requires to be quashed and set aside (iii) Whether Resolution Professional is debarred to continue with pending/existing assignments and replacement of resolution professional is required? 13. On Point No.(i), Learned Judicial Member held that the applicant has right to intervene in the present matter. On Point No.(ii), Learned Judicial Member held that the entire action of Respondent except approval of the Resolution Plan of AGI Greenpac Pvt. Ltd. which has already been set aside by the Hon'ble Supreme Court, could not be set aside as prayed in the instant application. On Point No.(iii), Learned Judicial Member after referring to Sections 97 and 98 of the IBC, judgment of the Hon'ble High Court of Madras in case of CA. V. Venkta Sivakumar(Surpa), judgment of the Hon'ble Bombay High Court in case of Kairav Anil Trivedi (Supra) and clause 23A of Bye-Laws came to the opinion that there is automatic suspension of Authorisation of Assignment of Resolution Professional upon....
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....ring above, the prayer "a" is Not Allowed with the liberty to file intervention application against specific grievance/s linked to interlocutory application with explaining the locus for filing such application. Accordingly, all other prayers become infructuous. The instant application is accordingly stands disposed of." 16. There being difference of opinion between Judicial Member and Technical Member, on same day i.e. 30.04.2025 another order was passed making a reference to the President. Order dated 30.04.2025 making reference is as follows:- "1. The matter was heard and kept for orders on 30.04.2025. 2. There is a difference of opinion between Member (Judicial) and Member (Technical) in regard to intervene in the CIRP of Corporate Debtor being CP (IB)No 369/KB/2020. 3. The point of issue on which the Members have differed is whether a party can seek a relief to intervene in the Company Petition which is already admitted vide admission order dated 21.10.2021. The difference of opinion is also on account of whether a party can seek various relief in the intervention application directly linking to the company petition vis a vis the entire CIRP and n....
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....ectly linking to the company petition vis a vis the entire CIRP and not linking his grievance/s to a particular application or by filing separate application, which defeats the whole purpose/nature of "intervention" types of application. 4. Let the matter be referred to the Hon'ble President, NCLT, Principal Bench, New Delhi for appropriate orders." (Emphasis Supplied)" 19. Hon'ble Third Member in paragraph 13 of the judgment noticed two points on which opinion of Third Member is sought. Paragraph 13 of the order is as follows:- "13. However, as per the reference made to me by the Hon'ble President, the issues on which my opinion is sought is restricted to the following two points: i. Whether a party can seek a relief to intervene in the Company Petition which is already admitted vide admission order dated 21.10.2021; ii. Whether a party can seek various relief in the intervention application directly linking to the company petition vis a vis the entire CIRP and not linking his grievance/s to a particular application or by filing separate application." 20. Both the above Points No.(i) and (ii), as noticed above, were answered by Learned Thi....
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....such prayers." 24. It is useful to quote the concluding paragraphs 36 and 37 of the Learned Third Member which is as follows:- "36. In the wake, the issue (ii) i.e., whether a party can seek various relief in the intervention application directly linking to the company petition vis a vis the entire CIRP, is answered in the affirmative. 37. It is made clear that I have only expressed my opinion on the two legal points to which the Hon'ble Members of the Division Bench have different views. I have not opined on the merits of the reliefs which have been sought by the Applicant in the captioned intervention application since the same are not the point of reference made to me. It is for the Hon'ble Members of the Division Bench to adjudicate on such reliefs. It goes without saying that due deference needs to be shown to the Order dated 16.05.2025 passed by the Hon'ble Supreme Court in Review Petition no. 657 of 2025 in Civil Appeal No. 6071 of 2023." 25. The opinion given by Third Member dated 10.06.2025 was placed before the Adjudicating Authority and the Adjudicating Authority passed order on 13.06.2025 disposing of Intervention Petition No.5 of 2025. It is use....
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....r in order dated 30.04.2025 and contained in paragraph 17 of the order which has been extracted above. In the order dated 13.06.2025, paragraph 4 mentions following:- "4. Therefore, in view of our majority view on point no.(i)and (iii), the present application stands disposed of with no order as to cost." 27. What has been held by the Adjudicating Authority is that "in view of our majority view on point no.(i) and (iii), the present application stands disposed of". 28. On Point No.(i) i.e. "Whether the applicant has the right to intervene in the CIRP process of the Corporate Debtor", there is a clear majority opinion i.e. opinion given by Learned Judicial Member in its order dated 30.04.2025 and opinion given by Third Member in order dated 10.06.2025 that applicant has right to intervene. In view of the aforesaid decision on Point No.(i) was in accordance with majority. However, the order dated 13.06.2025 proceeds on the premise that there is majority view on Point No.(iii). Point No.(iii), as noted above, was "Whether Resolution Professional is debarred to continue with pending/existing assignments and replacement of resolution professional is required?" On Point No....
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....001/IPP00999/2017-2018/11646], being Respondent No. 1, be removed with immediate effect for his alleged misconduct and the CoC be directed, or alternatively, this Learned Tribunal be pleased to appoint an independent and qualified Resolution Professional, having no connection with E& Y Restructuring LLP or any of the CoC Members, in place of Mr. Girish Siriram Juneja." 29. As per the majority opinion i.e. opinion by Judicial Member and Third Member the only prayer (a) was allowed. There was no majority opinion on prayer (b) which is Point No.(iii). Thus, it is held that there is no majority opinion with respect to Point No.(iii) i.e. on prayer (b). The order of the Adjudicating Authority dated 13.06.2025, thus, has to be held to confine to prayer (a) i.e. grant of leave to Respondent No.1 to intervene. Prayer (b) cannot be held to be granted. We, thus, answer Question No.(i) in the following effect:- There was no majority opinion on Point No.(iii) (Whether Resolution Professional is debarred to continue with pending/existing assignments and replacement of resolution professional is required?), hence, the Intervention Petition No.5 of 2025 could not have been disposed of on an....
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....gency; (b) the minimum number of independent members to be on the governing board of the insolvency professional agency; and (c) the number of the insolvency professionals being its members who shall be on the governing board of the insolvency professional agency. 205. Insolvency professional agencies to make bye-laws. - Subject to the provisions of this Code and any rules or regulations made thereunder and after obtaining the approval of the Board, every insolvency professional agency shall make bye-laws consistent with the model bye-laws specified by the Board under sub- section (2) of section 196." 33. Section 205 of the IBC mandates the Insolvency Professional Agency to make bye-laws consistent with the model bye-laws specified by the Board under sub-section (2) of Section 196. Section 196, sub-section (2) provides as follows: "196(2) The Board may make a model bye-laws to be adopted by the insolvency professional agency which may provide for - (a) the minimum standards of professional competence of the members of insolvency professional agencies; (b) the standard for professional and ethical conduct of the membe....
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....ing of professional members; (c) following the directions given by the Board or any court of law; or (d) suo moto, based on any information received by it." 35. Bye-law 23A is as follows: "23A. The authorisation for assignment shall stand suspended upon initiation of disciplinary proceedings by the Agency or by the Board, as the case may be. Explanation.- A disciplinary proceeding shall be considered as pending against the professional member from the date he has been issued a show cause notice by the Agency or the Board, as the case may be, till its disposal by the Disciplinary Committee of the Agency or the Board, as the case may be." 36. The Authorisation for assignment under the Bye-Laws is defined by Bye-Law 4 (aa), which is as follows : "4(aa) "authorisation for assignment" means an authorisation to undertake an assignment, issued by an insolvency professional agency to an insolvency professional, who is its professional member, in accordance with its bye-laws;" 37. There can be no two opinions about the consequences provided in Bye-Law 23A regarding suspension of the Authorisation for assignment upon initiation of discipl....
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....ignment.:" 40. One of the exception carved out by the above Proviso is that the provision of Regulation 7A, shall not be applicable on the date of expiry of his authorisation for assignment. Thus, the Proviso carves a clear exception that an assignment, which an Insolvency Professional is undertaking shall not be affected by expiry of his Authorisation for assignment. Thus, Regulation clearly contemplates that existing assignment, shall not be affected by expiry of authorisation of assignment. The authorisation of assignment has been defined in Regulation 2(aa), which is as follows: "2(aa) "authorisation for assignment" means an authorisation to undertake an assignment, issued by an insolvency professional agency to an insolvency professional, who is its professional member, in accordance with its bye-laws;" 41. Learned Counsel for Respondent No.1 submitted that Regulation 7A has no relevance, since it is completely silent about the authority of the RP to continue with existing assignment. The legislative scheme apparent from Regulation 7A provides that expiry of authorisation shall not affect the assignment, which RP is undertaking, i.e. on the date of expiry of the....
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....submission that on suspension of authorisation of assignment, the RP is statutorily debarred from continuing its existing functions. Had the consequence of suspension of authorisation for assignment is to statutorily debar the Insolvency Professional to continue with its existing assignment, there is no occasion for providing for requirement as contained in Regulation 13, sub-regulation (6). Thus, the statutory scheme as contained in Regulation 13(6) also indicates that there is no automatic statutory debar of RP to continue with existing assignment, merely because of suspension of authorisation of assignment that too when such suspension is in a manner of penalty by a final order under Regulation 13, sub-regulations (1) and (3). 45. We in the present case, are dealing with suspension, which is consequent to initiation of disciplinary proceedings by issuance of show- cause notice. Thus, when the suspension by way of penalty, does not contemplate automatic debarment from existing assignments, suspension under Bye-Law 23A, cannot be read to mean that suspension under Bye- Law 23A, shall automatically debar the RP from continuing with existing assignments. The statutory scheme refl....
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.... the disciplinary proceedings are initiated. Therefore, it can neither be termed as manifestly arbitrary nor be challenged on the ground of any confirmation of unguided/unbridled power. 6.2. The power of suspension is not a punishment and is an ad interim measure and if one has to be issued with show-cause notice, then the very purpose of ad interim suspension is lost. Inasmuch as ultimate punishment is imposed only on the conclusion of the disciplinary proceedings it cannot be said that any substantial or vested right of the resolution professional is violated. On the contrary, the purpose of suspension is to immediately keep the erring person away from the office, so that the relevant materials and evidence which are on record be properly collected and that there is an impartial and fair enquiry in the issue. Therefore, the requirement of issuance of showcause notice cannot be read into a provision of ad interim suspension. 6.3. Of course, any suspension, if prolonged, without any inquiry being proceeded with, would cause stigma. But the larger public interest and the laudable purpose behind the rule of suspension and the relative hardship had to be balanced. On....
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....lidity of Clause 23A as provided in the Schedule. Paragraphs 2 and 3 of the judgment, noticed the facts, which are as follows : "2. The challenge raised in this writ petition is to the show-cause notices dated October 26, 2023 and April 10, 2024 that have been issued to the petitioner by the Insolvency and Bankruptcy Board of India proposing to take action against him for violations under the Insolvency and Bankruptcy Code, 2016 and Regulations framed thereunder. The petitioner besides seeking restoration of his authorization for assignment also challenges the validity of clause 23A provided in the Schedule to the Insolvency and Bankruptcy Board of India (Model Bye-Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 ("2016 Regulations") as well as clause 23A of the Bye-Laws of ICSI Institute of Insolvency Professionals by urging the same to be ultra vires. 3. Facts relevant for considering the challenge as raised in the writ petition are that the petitioner is presently registered with the Insolvency and Bankruptcy Board of India ("IBBI") as an insolvency professional ("IP"). This registration is granted under the Insolvency and Bankrup....
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....requirement there must be an express rule enabling the same. There is no discretion vested with the insolvency professional agencies and the suspension is automatic, once the disciplinary proceedings are initiated. Therefore, it can neither be termed as manifestly arbitrary nor be challenged on the ground of any confirmation of unguided/unbridled power. The power of suspension is not a punishment and is an ad interim measure and if one has to be issued with show- cause notice, then the very purpose of ad interim suspension is lost. Inasmuch as ultimate punishment is imposed only on the conclusion of the disciplinary proceedings it cannot be said that any substantial or vested right of the resolution professional is violated. On the contrary, the purpose of suspension is to immediately keep the erring person away from the office, so that the relevant materials and evidences which are on record be properly collected and that there is an impartial and fair enquiry in the issue. Therefore, the requirement of issuance of show-cause notice cannot be read into a provision of ad interim suspension. Of course, any suspension, if prolonged, without any inquiry bein....
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....manner contrary to law or unwarranted in the facts of the present case. The contention raised by the petitioner in this regard therefore cannot be accepted." 52. The above reason was also taken note by Bombay High Court while refusing to interfere with the show-cause notice. The agreement, which has been expressed by the Bombay High Court with the judgment of Madras High Court as noted in paragraph-14, is agreement to the view expressed by the Madras High Court that Bye-Law 23A is constitutionally valid and does not suffer from any constitutional infirmity. Learned Counsel for the RP and CoC has relied on the observation made in paragraph-14 by the Bombay High Court that suspension on account of operation of Bye-Law 23A, does not bar the Insolvency Professional from continuing with pending assignments, but would only bar from accepting new assignments. 53. Judgment of the Delhi High Court in HNG Industries Thozhilalar Nala Sangam vs. Insolvency and Bankruptcy Board of India and Ors. -W.P. (c) No.3065 of 2025 has been relied by learned Counsel for the RP and the CoC is relevant to be noticed. The judgment of the Delhi High Court was delivered in the Writ Petition filed by HNG ....
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....In the circumstances, the learned counsel for the petitioner does not seek to press the present petition; the same is, accordingly, dismissed as withdrawn. 6. Intervention application/s have been filed by certain parties seeking to intervene in the present petition. However, in view of the withdrawal of the present petition in the above terms, there is no scope for entertaining the said application/s. The same are also, consequently, disposed of." 54. The case of Writ Petitioner was noticed in paragraph-2 that suspension of the authorization for assignment of the RP does not preclude him from continuing with his existing assignment, as the RP in the CIRP of the CD. Reliance on the judgment of Bombay High Court in Kairav Anil Trivedi has also been noticed in paragraph-3 of the judgment. The Delhi High Court in paragraph-4 noticed the stand of the IBBI, where learned Counsel stated before the High Court that order dated 30.01.2025 (by which show-cause notice was issued to Shri Girish Siriram Junega by the IBBI) precludes the RP from undertaking any new assignments; the same does not prevent him from continuing with any existing assignments. The said statement of the learn....
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.... in CA V. Venkata Sivakumar, does not lay down any ratio as is sought to be relied by learned Counsel for Respondent No.1. Judgment of Bombay High Court as well as Judgment of Delhi High Court, clearly noticed the stand of the IBBI that suspension under the Bye-Law 23A, preclude the concerned RP from undertaking any new assignment, but the same does not preclude the RP to continue with the existing assignments. The judgment of the Delhi High Court has rightly been relied by learned Counsel for the RP and the CoC, which clearly support their submissions. 57. In view of the foregoing discussions, we are of the view that learned Judicial Member in its opinion dated 30.04.2025 fell in error in opining that by virtue of Bye-Law 23A, authorisation for assignment, the RP is debarred from continuing with pending or existing assignments, is incorrect view of law and cannot be supported. 58. There is one more aspect of the matter, which needs consideration. We have noticed above that after judgment of the Hon'ble Supreme Court dated 29.01.2025, large number of Review Petitions were filed before the Hon'ble Supreme Court to review the judgment. A Review Petition was filed by AGI Grre....
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.... After 16.05.2025, the approval of Resolution Plan was to be considered by the CoC and Adjudicating Authority was directed to complete the process. The judgment dated 16.05.2025 has been taken note of by the Adjudicating Authority in order dated 13.06.2025 and even after noticing the judgment of Hon'ble Supreme Court dated 16.05.2025, the Adjudicating Authority proceeded to dispose of the Intervention Application No.5 of 2025 on alleged majority opinion, on Point No.1 and Point No.3. We have already held that there was no majority opinion on Point No.3, i.e. replacement of the RP. The order dated 13.06.2025 passed by Adjudicating Authority, which in essence directed for removal of the RP, the CoC having already approved the Resolution Plan of Independent Sugar Corporation Ltd. on 10.06.2025 and application for approval having been filed, nothing was to be done by the RP and it was for the Adjudicating Authority to consider the application and take a decision. The Adjudicating Authority instead of proceeding to consider the application for approval of Resolution Plan has unduly directed the replacement of the RP, which is not in accordance with the law, as we have already held in th....