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Judgment
Anuradha Sanjay Bhatia, Member (Technical)
The above captioned I.A. 2766 of 2022 is filed under Section 60(5) of the Insolvency and Bankruptcy Code 2016 (“Code”) seeking to issue directions to the Resolution Professional to share with the Applicant the copy of the Application filed by the Resolution Professional for approval of Resolution Plan, if any and any other applications filed by or against the Corporate Debtor including any Appeal preferred by any party before the Hon’ble NCLAT and/or any other forum.
The learned Counsel for the Applicant submits that the Corporate Debtor is engaged in processing including freezing and cold storage of marine products. The Corporate Debtor has complete facilities from washing, weighing, icing, pre-processing, filth washing, processing, freezing, packing and storing in cold storage.
The Applicant submit that the CIRP was initiated against the Corporate Debtor vide an order dated 03.08.2021. Pursuant to which, the Resolution Professional invited claims and formulated the CoC wherein the Respondent No. 2 i.e. Union Bank of India is the Sole Member of the CoC.
Thereafter, the Resolution Professional published Information Memorandum and Expression of Interest were invited and Three prospective Resolution Applicants namely, Rizwan Ice and Cold Storage, Lalita Powle in consortium with Suyog Agro and Poultry Products Pvt Ltd (Applicant) and Forstar Foods Private Limited submitted the Resolution Plans.
Subsequently, the CoC in its meeting dated 31.03.2020 had decided to conduct final bidding/ challenge mechanism for approval of Resolution Plan and the Applicant was declared as the Successful Resolution Applicant.
The Applicant further submits that vide an Email dated 21.05.2022, the Respondent No. 1 i.e. Resolution Professional called upon the Applicant to submit an appropriate guarantee of Rs. 75 lakhs or Rs. 1 crores as per the terms of the approved Resolution Plan. In pursuant to which, the Applicant has transferred an amount of Rs. 1 crores in a designated Bank Account of the Corporate Debtor on 21.05.2022.
The Applicant further submit that vide an Email dated 06.08.2022 the Applicant had requested the Respondent No. 1 i.e. Resolution Professional for factory visit of the Corporate Debtor and requested the Resolution Professional to share the necessary documents, the copies of the Applications and the Appeal preferred by the erstwhile promoters vide Email dated 30.08.2022. However, the same had been rejected by the Resolution Professional.
The Applicant further requested the Resolution Professional that they are interested to take up the space for cold storage capacity/ processing capacity on rent and the same was also rejected by the Resolution Professional.
The Applicant further submits that they believe that Resolution Professional is not interested in sharing the necessary information and somehow wants to keep control over the Corporate Debtor even when the CIRP has come to an end. Also, the Successful Resolution Applicant who had committed an amount of Rs. 20.39 crores to the Resolution Plan, has come to know that the manner in which the Respondent No. 1 is managing the affairs of the Company, is not in the best interest of the Corporate Debtor. Hence, this Application.
Findings:-
Heard the Counsel appearing for the Applicant, Counsel appearing for the Respondent No. 1 and Respondent No. 2 and perused the records.
In view of the above contentions raised by the Applicant, the issue that arise for consideration is:
whether the Resolution Professional has a right to restrict the successful resolution applicant from accessing the records of the Corporate Debtor and the information required from the Resolution Professional ?
This Bench is of the considered view that the CoC had approved the Resolution Plan of the Applicant and the Applicant has been declared as the Successful Resolution Applicant by the Resolution Professional vide an email dated 18.05.2022.
The Successful Resolution Applicant had also transferred an amount of Rs. 1 crores on 21.05.2022 as a guarantee, in terms of the approved Resolution Plan, as requested by the Resolution Professional vide an email dated 21.05.2022.
In view of the above, it is to be noted that the rights of the Resolution Professional has now been superseded by the Successful Resolution Applicant and it has every right possible to conduct the affairs in a manner which is not detrimental to the interest of the Corporate Debtor. The Resolution Professional is merely a Statutory Authority appointed to complete the CIRP process and thus cannot restrict the Successful Resolution Applicant approved by the CoC to conduct the affairs of the Company.
It is thereby directed that the Resolution Professional is under an obligation to share the copy of Application filed by the Resolution Professional for approval of Resolution Plan, if any, and any other Applications filed by or against the Corporate Debtor including any Appeal preferred by any party before the Hon’ble NCLAT and/or any other forum.
Accordingly, IA 2766 of 2022 is allowed and disposed of.