M/S. Suntech Infra Solutions Private Limited And Anr vs M/S Cinda Engineering And Construction Private Limited And Anr

Sumita Purkayastha, Member (T)

I.A. No. 2434/2020 has been filed under rule 11 of NCLT Rules, 2016 by the IRP seeking following prayers:

I. Allow the present application to be taken on record.

II. Direct the Corporate Debtor to make the payment of the remaining amount Rs.99,351/- being part of the GST amount that has already been paid by the applicant.

III. Direct the Corporate Debtor to bear the expenses incurred by the applicant on filing the present application.

IV. Pass such other order, which the Adjudicating Authority deem fit and proper in the facts and circumstances of the case.

The application for CIRP was filed by M/S Suntech Infra Solutions Pvt. Ltd. against the Corporate Debtor M/S Cinda Engineering and construction Pvt. Ltd. Under Section 9 of the IBC, which was admitted by the Adjudicating Authority vide order dated 14.11.2018 and appointed Mr. Vijender Sharma as the IRP. Pursuant to the above, the Corporate Debtor challenged the said order of the tribunal which was later set aside by the Hon`ble NCLAT vide its judgement dated 24.01.2019. The CIRP lasted from 15.11.2018 to 24.01.2019.

Further the IRP (herein the Applicant) had requested the Corporate Debtor to pay the balance amount of the CIRP cost which included the fee of the IRP till the period CIRP was conducted of an amount of Rs. 26,17,264/-. The Hon`ble Appellate Tribunal vide its order dated 24.01.2019 had directed the Corporate Debtor to pay the fee of the IRP which was to be fixed by the Adjudicating Authority. The Hon`ble NCLAT further clarified vide another order dated 15.07.2019 that the Adjudicating Authority will fix the fee and the cost both payable to the IRP.

The application bearing CA No.33/2019 was filed by the IRP seeking orders and directions that the balance amount of fees as charged by the IRP be orders to be paid by the Corporate Debtor. Vide order dated 06.11.2019 the Adjudicating Authority stated that "It is admitted fact and also admitted by the IRP that amount of Rs. 13,43,590/- and odd is already paid by the Corporate Debtor to the IRP during the process. We have gone through the details filed by the Resolution Professional with respect to the fees charged, expenses incurred and fees paid to the advocates/counsels during the litigations."

"In our view the amount already paid by the Corporate Debtor was being paid during and while CIRP was progress to meet the expenses by the IRP for conducting the CIRP and litigation. On perusal of the list of the fees charged, it is seem that out of total 25 items, 13 items relates to the professional fees of different advocates including senior advocate for appearances before Hon'ble NCLAT. In our view, since the Resolution Professional had not contested any major proceeding nor any complicated issue of question of law was involved, hence, such huge expenses for hiring the legal experts is incredible as required. In our view, the total amount of Rs. 20,00,000/- including the expenses incurred should be sufficient to justify the present case. Hence, we direct the Corporate Debtor topay the balance amount falling short of Rs. 20,00,000/- after deducting the credit of the amount already paid by them"

It is submitted by the applicant that the Corporate Debtor has paid the amount of Rs. 5,51,952/- (Cheque of Rs.4,71,952/- & TDS of Rs. 80,000/-) However, the Corporate Debtor has not paid the GST amount of Rs.99,351.4/- The applicant has already deposited the GST before the department.

The submissions made by the Applicant were heard. As per the judgement of the Hon`ble NCLAT, the Adjudicating Authority had fixed a reasonable quantum of the fee payable to the IRP/RP. In order to provide clarification it is reiterated that the Adjudicating Authority in its earlier order dated 06.11.2019 had observed the list of fee charged wherein 13 items related to professional fees of different advocates including senior advocates for appearance before the Hon`ble NCLAT were mentioned. In the view of the Adjudicating Authority the RP on its own discretion incurred extravagant expenses to hire the legal experts for the matter wherein no major proceedings or any complicated issue of question of law was involved. Taking into consideration of this factthe Adjudicating Authority had capped the total amount of Rs. 20,00,000/- inclusive of the amount already paid by the Corporate Debtor and such other statutory charges.

The Applicant has made a submission that the amount of GST i.e Rs.99,351.4/- has already been deposited before the Revenue Department and the respondent may claim it. In our view the issue in hand with respect to the GST is within the purview of and included in the capped amount of Rs. 20,00,000/- as directed by the Adjudicating Authority vide its order dated 06.11.2019. Hence no further amount needs to be adjudicated.

Application 2434/2020is rejected and disposed off in terms of the above order.