Bibhuti Bhushan Biswas & Ors Vs M/S Ansal Properties and Infrastructure Limited

IA-6543/2023: On 18.12.2023, this Tribunal passed the following order:

“IA-6543/2023: As prayed by Mr. Rachit Mittal, Ld. Counsel appearing for the Applicant, the hearing in the captioned application is deferred to 01.01.2024. In the meantime, we make it clear that the existing RP should ensure that the meeting of CoC scheduled to be held on 21.12.2023 is held in a fair and transparent manner. The RP is directed not to make any endeavour to influence any of the Member of the CoC and should allow them to take their decision in a free, fair and independent manner. Mr. Ankit Sharma, Ld. Counsel appearing for the RP assured the Bench that all fairness and transparently would be maintained in conducting the CoC meeting.

List on 01.01.2024.”

Mr. Rachit Mittal appearing for the CoC submitted that in compliance of the said order passed by this Tribunal, the RP had called CoC meeting on 21.12.2023 and the CoC passed a resolution with 100% voting share, appointing Mr. Jalesh Kumar Grover registration No. IBBI/IPA-001/IP-P00200/207-2018/10390 to carry out the CIRP qua Fernhill Project of M/s Ansal Properties and Infrastructure Limited for the remaining period of CIRP. The resolution and the voting results reads thus:

“To appoint a Resolution Professional proposed to carry out the Corporate Insolvency Resolution Process of Fernhill Project of M/s. Ansal Properties and Infrastructure Limited for the remaining period of the CIRP in accordance with provisions of IBC, 2016.

Draft Resolution(s)

RESOLVED THAT a Resolution Professional Mr. Jalesh Kumar Grover (Reg. No.: IBBI/IPA-001/IP-P00200/2017-2018/10390) having its Registered Office, at SCO 818, Second Floor, above YES Bank, NAC, Manimajra, Chandigarh- 160101, proposed to carry out the Resolution Process of Fernhill Project of M/s Ansal Properties and Infrastructure Limited for the remaining period of the CIRP in accordance with provisions of IBC, 2016 be and is hereby appointed as Resolution Professional with the following fee -

Professional Fee:-

Sr. No.

Fee Matrix

One   Time   fee Chargeable

Monthly      Fee Chargeable (INR)

i.

Professional     Fee     for     Insolvency

Resolution Process per month (RP)

-

5,00,000/-

ii.

Professional Fee for Two Valuers (for

each class of asset)

On actual basis

-

iii.

Professional Fee towards retainer ship of Insolvency Lawyer/Advocate in the CIRP   for   other   than   appearing   in cases    contested    by    any    other

stakeholders.

On actual basis, Whenever the need arises

-

iv.

Remuneration for other support staff

and logistics/Process advisor

Included in

above

-

v.

Insurance cover of IRP/RP

Included in

above

-

vi.

Out   of   pocket   expenses   including travel, stay, meals, personal security

and taxes etc.

On actual basis

-

vii.

Any other costs/ charges/ Clerkage/

Stationery /Courier

On actual basis

-

viii.

Security Guards at the Site

On actual basis

-

The above-mentioned fee shall be chargeable by the undersigned till the approval of resolution plan from COC. The professional fee chargeable for the remaining period shall be 50% of the abovementioned fee, till the approval of resolution plan by the Hon’ble AA. Further, the fee payable to the undersigned post approval of resolution plan by the Hon’ble AA shall be borne by the successful Resolution Applicant.

Note:

The abovementioned quote is exclusive of the applicable indirect taxes which shall be charged separately, as applicable.

RP will draw his professional fees from the account of Corporate Debtor.

Liability of RP is limited to the fees paid /drawn for the Assignment.

Exclusion

The above professional fees are exclusive of all the out of pocket expenses (as also stated in the table above) that are to be reimbursed at actuals upon production of documentary evidence, wherever feasible. An indicative list of the out-of-pocket expenses is as under:

a) Fee payable to authorised representative, if any appointed under sub-regulation (8) of regulation 16A along with out of pocket expenses of authorised representative for discharge of his functions under Section 25A;

b) Fee payable to Board under Regulation 31A;

c) Fee payable to the appointed Valuers for determination of liquidation value of the corporate debtor;

d) Fee payable to the security agencies, lawyers and other professionals whose services may be required during the CIRP of corporate debtor along with out of pocket expenses incurred by them;

e) Other out of pocket expenses, if any incurred by RP and team.

RESOLVED FURTHER THAT in case the proposed resolution is passed in pursuance to the Section 27(2) of the IBC, Mr. Pankaj Arara, sole member of Committee of Creditors shall forward the name of Mr. Jalesh Kumar Grover to the Adjudicating Authority.”

Mr. Rachit Mittal, Ld. Counsel appearing for the CoC submitted that despite appointment of fresh RP by the CoC, the replaced CoC namely Mr. Ashwani Kumar Singla has issued notice calling 14 to 21 meetings of CoC. He could draw our attention to the E-mail dated 01.01.2024. Let the minutes of CoC which could take place on 21.12.2023 and the copy of the E-mail produced by Mr. Rachit Mittal be brought on record by way of affidavit. In the meantime, Mr. Ashwani Kumar Singla, Ld. RP is directed not to take any decision contrary to the wish of the CoC. It goes without saying that once the CoC has passed the resolution replacing Mr. Ashwani Kumar Singla RP, there is no sanctity of the notices of CoC meeting issued by him. It would be open to the CoC to go by the resolution passed by it replacing the RP.

At this stage, Mr. Dhawan, Ld. Counsel appearing for the RP submitted that he is only the proxy counsel and the RP will appear in person before this Tribunal on 02.01.2024 at 10:30 am. In view of his submission, the aforementioned order is deferred to 02.01.2024.