TaxTMI 
TaxTMI 
2026 (3) TMI 989
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....r. Pankaj Srivastava, IRP of Think and Learn Pvt. Ltd. Vs. Aditya Birla Finance Limited" herein after referred to as the first appeal and CA (AT) (Ins) No. 166 of 2025 titled as "Pankaj Srivastava Vs. Glass Trust Company LLC" herein after referred to as the second appeal as the issue involved in these cases is common and raised by the same IRP. 2. In brief, both these appeals have been filed by Pankaj Srivastava, IRP, having registration No. IBBI/IPA-001/IP-P00245/2017-2018/10474, to challenge the observations made by the NCLT, Bengaluru Bench (in short 'the Tribunal') in I.A No. 660 and 820 of 2024 which were disposed of on 29.01.2025. 3. The observations challenged by the Appellant in both these appeals are as under:- "26. Hence, it is clear from the aforementioned that the IRP has a duty to assist the Tribunal with integrity in an honest and fair manner and the conduct of the IRP in the present case has been filed with the intent to mislead the tribunal. The actions and decisions taken by the IRP are prejudicial to the interests of the CIRP process outlined by the IBC, 2016 and to the stakeholders. Further, the conduct of IRP is not fit and proper as expected from....
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....mmittee of Creditors with the Applicant classified as a Financial Creditor with the proportionate voting accruing in light of the financial debt owed to it by the Corporate Debtor" 9. The other application being I.A No. 820 of 2024 was filed under Section 60(5) of the Code by Glass Trust Company LLC with the following prayers:- "(i) declare that Respondent No.1 does not have the power to re- constitute to the Committee of Creditors ["CoC"] of the Corporate Debtor; (ii) Set aside reconstitution of CoC and restore the CoC as on 21.O8.2O24 and (iii) Set aside resolutions of the CoC held on O3.O9.2O24 and all subsequent meetings which may have taken place." 10. The aforesaid two applications, after contest by respective parties, were disposed of by the Tribunal with the following orders:- 26. Hence, it is clear from the aforementioned that the IRP has a duty to assist the Tribunal with integrity in an honest and fair manner and the conduct of the IRP in the present case has been filed with the intent to mislead the tribunal. The actions and decisions taken by the IRP are prejudicial to the interests of the CIRP process outlined by the IBC, 2016....
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....arly para 6 of the said order in which the Appellant was directed to explain the discrepancies pointed out in the said order and to provide justification for the same and the other side was also given time to file its response with an affidavit. It is submitted that on 18.12.2024 the case was adjourned to 08.01.2025. He has further submitted that on the next date i.e. 08.01.2025 the applications no. 942 and 671 of 2024 were shown in the cause list of the Court but the said applications were not taken up for hearing and therefore, the Appellant could not give any explanation about the discrepancies. He has further submitted that before the Appellant could furnish the explanation in regard to the alleged discrepancies, the applications no. 660 & 820 of 2024 were disposed of by the Tribunal on 29.01.2025 whereas the applications no. 942 and 671 of 2024 in which the Appellant was granted opportunity to give explanation were disposed of on 17.02.2025. It is submitted that the application I.A No. 942 of 2024 was disposed of by taking on record the document certifying the constitution of CoC of the CD where as I.A No. 671 of 2024 was disposed of as infructuous. 13. Counsel for the Appe....
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....rms of Regulation 17(1) of the Regulations as constituted by the IRP for CD" 16. He has also submitted that I.A No. 942 of 2024 was filed to bring to the notice of the Tribunal about the constitution of the CoC on 21.08.2024 in which there were four CoC members. However, the said application was not pursued by the Appellant for the purpose of its listing before the Court. Therefore, during the proceedings in CP (IB) No. 149/BB/2023 on 11.12.2024, in the presence of Counsel for the RP who had appeared through Sr. Counsel at that time, the Court passed the following order:- "C.P. (IB) NO.149 OF 2023: 1. Heard the Ld. Sr. Counsels appearing for the parties. 2. It is noticed that the RP of the Corporate Debtor filed an IA vide Diary No.01441 dated 22.08.2024 with E-filling no.2903111/01441/2024 by seeking to take on record the report certifying the constitution of the CoC of the Corporate Debtor in terms of Regulation 17(1) of the IBBI CIRP Regulations, 2016. 3. On scrutiny of the said IA, Registry raised certain objections on 28.08.2024 and informed the Applicant-RP to rectify the same. However, it is noticed that RP has not rectified the same ti....
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.... INCRED Financial Services Limited, which holds 100% of voting rights, thereby excluding M/s. GLAS Trust who has holding 99.41% of voting shares and M/s. Aditya Birla holding 0.41% which the RP is not empowered to do, without mentioning that it was reconstitution of the CoC. Hence, the RP has hidden the fact that he has re-constituted the CoC without taking any approval from this Tribunal. 4. Ld. Sr. Counsel for GLAS Trust also stated that the constitution of the CoC in both the aforementioned I.As are of same date i.e. on 21.08.2024. This has been specifically mentioned by the RP in para 8 at page 5 of I.A.No.942/2024 and again in para 8 of page 5 of I.A.No.671/2024. Therefore, it is reiterated that the RP has filed two different I.As before this Tribunal regarding the constitution of the CoC and these two I.As are entirely different from each other. Therefore, it is stated by the Ld. Sr. Counsel for GLAS Trust that the RP has committed grave irregularity in violation of the provisions of the Code and Regulations, and also has given a false Affidavit regarding the constitution of two different CoC's with different Members, and in the both IA No.942/2024 and IA No.671/2024....
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....Applicant has constituted the Committee of Creditors in the matter of Think & Learn Private Limited on 21.08.2024 in accordance with Section 18(c) and Section 21(2) of the Code as follows:- NAME OF THE CREDITOR AMOUNT CLAIMED AMOUNT VERIFIED VOTING SHARE (%) INCRED FINANCIAL SERVICES LIMITED 20.34,52,440 20.34.52.440 100% TOTAL 100% 20. The prayer made in the application I.A No. 671 of 2024 is that "b. Kindly take on record the present report certifying constitution of the Committee of Creditors on record in terms of Regulation 17(1) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 as constituted by the Interim Resolution Professional for Think & Learn Private Limited; and". 21. Counsel for the Respondent, besides aforesaid facts and circumstances, indicating alleged dubious conduct of the Appellant, has also referred to the findings of the Tribunal in the order dated 29.01.2025 by which I.A No. 660 and 820 of 2024 were disposed of. The said observations are reproduced as under:- 21. There were certain objections raised by the Registry of this Trib....
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.... 22. Counsel for the Respondent has submitted that not only the Appellant has tried to delay the listing of the application I.A No. 942 of 2024 but also got I.A No. 671 of 2024 listed which was filed much after the filing of the application I.A No. 942 of 2024, in order to obtain an order from the Tribunal that the Appellant has constituted the CoC with only one member i.e. Incred Financial Services and not with four members as has been held in the order dated 29.01.2025. He has also submitted that since the conduct of the Appellant was found to be mischievous by Glass Trust Company LLC, therefore, it filed an application bearing I.A No. 657 of 2024 on 02.09.2024 for the replacement of the Appellant as the IRP but in order to remove Glass Trust Company LLC from the CoC, the IRP ante dated the letter as of 01.09.2024 alleging that the claim of the Respondent is contingent but interestingly, the Appellant himself admitted later on that the it was a letter dated 03.09.2024 which was mistakenly mentioned as 01.09.2024. 23. Counsel for the Respondent has also submitted that in so far as the issue of opportunity of hearing is concerned, the Appellant had been given ample opportunity....
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.... Therefore, I.A No. 671 of 2024 is disposed of as infructuous." 27. He has submitted that the order dated 17.02.2025 passed in both the aforesaid application were challenged by Ryju Raveendran by way of SLP (C) diary no. 26887 of 2025 registered as SLP (C) No. 19647 and 19648 of 2025. The said SLP has been dismissed with the following order:- 28. It is submitted that though the permission to file the SLP was granted but after hearing the parties, the SLP was dismissed which means that the order passed by the Tribunal in I.A No. 942 of 2024 was upheld and in so far as I.A No. 671 of 2024 is concerned, it had become infructuous. 29. We have heard Counsel for the parties and perused the record with their able assistance. 30. Since we have given the facts in detail of these cases by reproducing the orders which have been pointed out during the course of hearing by counsels for the parties, therefore, we need not to refer to these orders in detail now. It is suffice to say that the Appellant had filed two applications I.A No. 942 and 671 of 2024 in consonance with Regulation 17(1) of the Regulations on 21.08.2024 and on 30.08.2024 respectively and that in I.A No. 942 of 2024....
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.... taken by the Appellant as no explanation much less justification was given by the Appellant either in writing or orally before the Tribunal when the matter was listed on 08.01.2025. Though, the applications no. 942 and 671 of 2024 were to be disposed of as procedural applications for taking the report of the RP filed under Regulation 17(1) of the constitution of the CoC on record, the very fact that the Appellant delayed, by not curing the defects, the listing of the application no. 942 of 2024 by which he intended to inform the Tribunal that he has constituted the CoC with four members and accelerated the listing of I.A No. 671 of 2024 containing information of a single member CoC even though the application was filed nine days after filing of the application no. 942 of 2024 is sufficient to demonstrate that there was something mischievous in the mind of the Appellant. There is another aspect of the matter which needs to be borne in mind is that even though the application no. 942 of 2024 was prepared and filed on 21.08.2024 then why the Appellant did not mention this fact in the application no. 671 of 2024 which was filed on 30.08.2024. The explanation given by Counsel for the A....