Bansal High Carbons Pvt. Ltd vs Employeesâ’ Provident Fund ...

IN THE MATTER OF: Bansal High Carbons Pvt. Ltd. ...Appellant

Versus

Employees Provident Fund Organization & Ors. ...Respondents

Present: For Appellant : Mr. Anant Jain, Mr. Gaurav Mitra, Mr. Aditya Gauri, Mr. Amar Vivek, Ms. Daimini Srestha, Mr. Ishaan Roy Choudhary and Ms. Aarushi, Advocats

For Respondent : Mr. PBA Srinivasan, Ms. Srishti Bansal, Mr. Sumit Swami and Mr. Anand Pundir, Advocates for R-5.

ORDER

(Hybrid Mode)

22.01.2025 Heard Learned Counsel for the Appellant as well as Mr.

PBA Srinivasan Learned counsel appearing for the State Bank of India.

This Appeal has been filed against the order dated 02.06.2022 passed

by National Company Law Tribunal, New Delhi Bench, Court-2 in I.A.

2554/2022. I.A. was filed by the RP praying for following directions:

"1. Declare that the demands and claims raised by Respondent No.1 to 4 pertaining to the CIRP Period of Corporate Debtor, after approval of Resolution Plan, to be a part of CIRP cost;

2. Direct Respondent No.1 to 4 to approach Respondent No.5 to raise their claims as per approved Resolution Plan;

3. Direct Respondent No.5/State Bank of India to consider the CIRP cost as per Resolution Plan and release the CIRP cost to Respondent No.1 to 4;"

The Adjudicating Authority disposed of the Application observing that

there is no specific provision to allow such kind of prayer, hence the

Application was dismissed.

Aggrieved by the said order, this appeal has been filed by the SRA.

We have heard Sh. Gaurav Mitra, Learned Counsel for the Appellant

and Sh. Srinivasan appearing from the State Bank of India.

Learned Counsel for the Appellant submits that as per the resolution

plan, the CIRP cost was to be made from to the regular cash flow of Corporate

Debtor and any CIRP cost remained to be paid the same shall be paid out of

72 crores offered by the Resolution Applicant to the sole Financial Creditor.

He submits that in view of the aforesaid, Financial Creditor was to bear any

CIRP cost. Learned Counsel Mr. Srinivasan submits that there is no demand

to the State Bank of India nor there is any determination by the RP that what

are the CIRP cost to be paid to Respondent No.1 to 4 as arrayed in the

application. He submits that the CIRP cost if it is determined by the RP the

bank shall make the payment.

We have considered submission of Counsel for the parties and perused

the record.

The order of the Adjudicating Authority by which resolution plan was

approved has been brought on the record and it is useful to extract following

part of paragraph 15 dealing with the payment plan, which is as follows:

"15. The relevant extract of the resolution plan as accepted by the CoC and put forth for our consideration is reproduced as

Company Appeal (AT) (Insolvency) No. 1075 of 2022 2 of 4 under. It is stated to be in line with the provisions of Section 53 of the Code.

S. Outstanding Outstanding Total Remarks (All No. Dues in order Liability as Amount waivers/hair-cut of Priority as per Books of offered subject to the per Section 53 CD on approval of CoC of IBC, 2016 30.06.2017 /Adjudicating (CIRP Date) Authority.

A Insolvency The CIRP Cost is met Resolution out of the regular Process (CIRP cash out of the Cost) regular cash flows of CD during CIRP period. However, CIRP Cost if any, remains outstanding, to be paid out of the Amount of Rs.7200.00 Lakhs offered by the Resolution Applicant.

B (I) Workmen's No such dues Dues - 24 reported months preceding CIRP

(II) Debts due to Secured Financial Creditors a. State Bank of 18733.94 7200 Offer amount of India Rs.7200 Lakhs (Claimed proposed to be paid Filed/admitted in order of Priority as in IM per Section 53 of IBC. Rs.18733.94 We assume no Lakhs) outstanding CIRP cost, however the amount to be paid to State Bank of India shall be reduced by the amount of CIRP cost, if any paid/payable and consequently the amount of waiver sought will increase by same amount."

Company Appeal (AT) (Insolvency) No. 1075 of 2022 3 of 4

When we look into the aforesaid clause of the resolution plan, it is clear

that with regard to Insolvency Resolution Process cost, the resolution plan

contemplate that the CIRP cost is to be made out of the regular cash and if

any cost remains, it is to be paid by amount of Rs.72 Crores offered to the

State Bank of India. The decision of the Adjudicating Authority that there is

no specific provision to allow such kind of prayer cannot be accepted. CIRP

cost which is contemplated in the IBC and the CIRP Regulations, 2016 has to

be paid. Mr. Srinivasan is right in his submission that it is for RP to consider

the any such claim and take a decision and communicate the same to the

State Bank of India.

In the facts of the present case, we dispose of the application I.A. No.

2554 of 2022, clarifying that balance CIRP cost, if any, is to be paid by Sole

Financial Creditor - State Bank of India for which RP shall consider the

demands received from Respondent No.1 to 4 to the application and after

determining that they are CIRP cost may communicate to the Financial

Creditor to make the payment. With the above direction, we dispose of the

Appeal.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) pks/nn

Company Appeal (AT) (Insolvency) No. 1075 of 2022 4 of 4