Rajendra Kumar Bhuta vs Trust House Commerce Centre Private Limited & Ors

Shyam Babu Gautam, Member (Technical)

The present Application is filed by the Applicant i.e. the Resolution Professional for reimbursement of Rs. 36,15,838/- to meet the expenses of the CIRP cost pursuant to the admission Order passed by this Tribunal on 05.03.2018.

The brief facts of the present Application are stated herein. The Applicant states vide an Order dated 05.03.2018, Corporate Insolvency Resolution Process of the Corporate Debtor was initiated pursuant to Petition filed by Abhyudaya Co-operative Bank Ltd. Under section 7 of the Insolvency and Bankruptcy Code, 2016. (Code).

After the admission Order, the ex- Director filed appeal against the said Order in the Hon'ble NCLAT for seeking stay of the admission Order. But the Hon'ble NCLAT dismissed the said appeal and stated that the CIRP of the Corporate Debtor will continue.

Meanwhile, the Respondent No. 2, IndusInd Bank filed claim of Rs. 102,78,28,873/- as the Financial Creditor. The claim of the IndusInd Bank was accepted in the 2nd CoC meeting and by accepting the claim, IndusInd Bank became 93.96% member of CoC and the Original Financial Creditor i.e. Abhyudaya Co-operative Bank Ltd. Which was 100% member of the CoC reduced to 6.04%.

Further,  aggrieved  by  the  Hon'ble  NCLAT  Order  rejecting  the appeal filed by the Director of the Corporate Debtor, the ex-Director of the Corporate Debtor Company filed Special Leave Petition (SLP) before Hon'ble Supreme Court against the Order dated 05.09.2018 passed by Hon'ble NCLAT. The Hon'ble Supreme Court was pleased to admit the SLP and stayed the Insolvency proceedings vide Order dated 26.11.2018.

The Applicant in the 3rd COC meeting gave the details of expenses incurred by him. The summary of the fees and expenses approved by the CoC is annexed in the Application. The Applicant wrote emails to the Financial Creditors stating the amounts to be paid and also clarified the queries raised by them but, despite the communications, the Applicant did not receive the fees and expenses.

The Applicant states that the CIRP pf the Corporate Debtor was dismissed by the Hon'ble Supreme Court vide its Order dated 02.09.2019. The Applicant submits that at the time of hearing the Advocate  for  the  Resolution  Professional  informed  the  Hon'ble Supreme Court about the CIRP costs aggregating to Rs. 36,15,838/-being unpaid to the Resolution Professional. The Hon'ble Supreme Court refused to get in to the matter and informed that the RP should approach the Adjudicating Authority for the same.

Hence the Applicant prays and seeks direction from this Court for reimbursement of the fees and expenses incurred by the RP during the CIRP period.

The Respondent No. 3 in the present Application i.e. Abhudaya Co-operative Bank Limited the Original Financial Creditor who filed the present Petition under 7 of the Code, filed its reply dated 07.01.2020. The Respondent No. 3 states that the present Application is not maintainable as the grounds for which such application is filed has no provision under the code. Also the present forum is not appropriate for the RP to claim the alleged cost.

Further the Respondent No. 3 states that the Respondent No. 3 has paid substantial amount to the Applicant and the Applicant is liable to pay as per the proportionate of the claim of the Original Financial Creditor.

The Respondent No. 3 further states that the said Company Petition was filed by the Financial Creditor for liquidation of the Corporate Debtor as the Corporate Debtor failed to pay total claim of Rs. 6,59,70,734/- as on 02.01.2018. The said Company Petition was admitted by this Tribunal on 05.03.2018 and the Applicant was appointed as the IRP. So, the effect and entitlement of the IRP to charge the alleged expenses arises from 05.03.2018. Further, Hon'ble NCLAT vide its Order dated 05.09.2018 dismissed the Company Appeal filed by the Corporate Debtor, challenging the Order dated 05.03.2018 passed by the Adjudicating Authority.

Further, since the Hon'ble Supreme Court of India granted stay on the CIRP proceedings on 26.11.2018 and further on 02.09.2019, the Hon'ble Supreme Court of India set aside the Order of the Hon'ble NCLAT and dismissed the claim of the Financial Creditor on the ground of time barred. Hence, the Applicant cannot claim any fees for the said period as no work was undertaken during the said period much less the conveying any meeting or incurring any cost.

Further upon being appointed as the IRP, the Applicant had received an amount of Rs. 70,000/- as an advance from the Financial Creditor to carry out the CIRP process and the Applicant had also agreed for the monthly fees of Rs. 2,00,000/- to act as IRP.

The Applicant states that the RP is not entitled to claim the said alleged claim and the Applicant has not disclosed complete facts.

The Respondent further states that the Respondent No. 3 as a member of CoC has only 6.04% of the total share and the IndusInd Bank holds 93.96% share of the total debt. Accordingly, the IndusInd Bank shares 93.96% of CIRP cost and the balance 6.04% of CIRP cost will be recovered from the Respondent No. 3.

Further the Respondent No. 3 made payment of the IRP fees of Rs. 8,39,835/- and is not entitled for any fees during the pendency of the proceedings before the Hon'ble Supreme Court. The Respondent No. 3 also informed the RP that the Respondent No. 3 has paid more than its share towards the CIRP costs and in fact the Respondent No. 3 is entitled for refund of excess fees for which the Respondent No. 3 reserves its right to claim from the Applicant.

ORDER

Having considered, the submission of the Counsel appearing for the Applicant and on perusal of the records placed before this Tribunal, we are of the considered view that the Fees of the RP during the CIRP period of the Corporate Debtor for the Time period from 13.06.2018 to 02.09.2019 as indicated at page 11, Item A of the IA 3251 of 2019, constituting to Rs. 30,81,719/- (Rupees Thirty Lakhs Eighty-One Thousand Seven Hundred and Nineteen Only) is to be paid by the Financial Creditors i.e. IndusInd Bank and Abhyudaya Co-operative Bank Limited proportionately as per their total share as members of the CoC i.e. IndusInd Bank holding 93.96% to pay Rs. 28,95,583/- (Rupees Twenty-Eight Lakhs Ninety-Five Thousand Five Hundred and Eighty-Three Only) and Abhyudaya Co-operative Bank Limited holding 6.04% to Rs. 1,86,136/- (Rupees One Lakh Eighty-Six Thousand One Hundred and Thirty Six Only).

Further apart from the above fees, the other expenses as indicated at page no. 13, Item B, C, D and E of the IA 3251 of 2019, aggregating to Rs.5,34,119/- (Rupees Five Lakhs Thirty-Four Thousand One Hundred and Nineteen Only) is to be paid by the Corporate Debtor.

With the aforesaid observation, IA No. 3251 of 2019 in CP 1264 of 2017 is allowed and disposed of.