Salem Stainless Steel Suppliers ... vs Raju Bhai Patel

IN THE MATTER OF: Salem Stainless Stell Suppliers Pvt. Ltd. ...Appellant

Versus

Rajubhai Patel (RP of Cooltech Containers Pvt. Ltd.) ...Respondent

Present: For Applicant: Mr. Gulshan Kr. Sachdev, Adv. For Respondent: None for Respondent

ORDER

Per: Justice Rakesh Kumar Jain: (Oral)

06.02.2023: This appeal is directed against the order dated

23.02.2022, passed by the Adjudicating Authority (National Company Law

Tribunal, Ahmadabad, Division Bench, Court-I) by which an application

bearing I.A. No. 851(AHM)2021 filed by the RP claiming his fee of Rs.

2,95,026/- has been decided and the present Appellant has been directed to

pay the said amount within a period of two weeks.

2. At the time of issuance of notice dated 11.04.2022, interim order was

passed to the effect that "In the meantime, the direction in order dated

23.02.2022 shall remain stayed."

3. The brief facts of this case are that the present Appellant filed a petition

bearing CP (IB) No. 599/9/NCLT/AHM/2019 under Section 9 of the

Insolvency and Bankruptcy Code, 2016 (in short 'Code') against the Corporate

Debtor 'M/s Cooltech Containers Pvt. Ltd.' for the resolution of an amount of

Rs. 63,30,267/-. The said petition was admitted on 17.12.2020. Kedar Ramratan Laddha was appointed as Interim Resolution Professional (IRP) and

the Appellant was directed to pay an advance of Rs. 50,000/- to the IRP for

the purpose of conducting the Corporate Insolvency Resolution Process

(CIRP).

4. It is submitted that the said amount i.e. 50,000/- was paid to the said

IRP. Thereafter, since there were some talks of settlement between the parties

were going on, therefore, I.A. No. 26 of 2021 was filed, at the instance of the

Appellant, for withdrawal of the CIRP on the ground that the settlement had

arrived at. However, during the pendency of said application, the Appellant

submitted that there is no settlement, therefore, I.A. No. 26 of 2021 was not

pressed and was allowed to be withdrawn. The Adjudicating Authority passed

the following orders on 13.07.2021: -

"Since IRP is not proceeding with the CIRP in spite of the fact that there is no stay on CIRP, we replace IRP by appointing Mr. Rajubhai Patel, having Registration No. IBBI/IPA-003/IP-N00031/2017- 18/10259 (having email id: rajupatel18@hotmail.com, Mobile No. 98250 38407) as Interim Resolution Professional of the CD. The erstwhile IRP is directed to handover all the documents/records, if any, in his possession to the new IRP forthwith. The new IRP shall conduct the CIRP of the CD in a time bound matter as per the provisions of IBC r.w. Regulations made thereunder and submit progress reports thereof periodically."

5. It appears that thereafter an application bearing I.A. No. 851 of 2021

was filed at the instance of the RP through which he claimed fee of Rs.

2,95,026/-. Though notice was issued in the said application but it is

submitted by Counsel for the Appellant that due to some bonafide mistake the Appellant could not represent and an ex-parte order was passed which is

challenged herein through this appeal.

6. Counsel for the Appellant has submitted that as per Regulation 33 of

Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for

Corporate Persons) Regulations, 2016 (in short 'Regulations') the cost of

Interim Resolution Professional is to be fixed by the Applicant (either the

Financial Creditor or Operational Creditor). The Adjudicating Authority is to

fix the expenses where the Applicant has not fixed the expenses under sub-

regulation (1). It is submitted that the Adjudicating Authority has fixed

50,000/- as the expenses to be paid to the IRP by the Applicant. Counsel for

the Appellant has laid emphasis on Regulation 33 (3) to contend that as per

said Regulation the applicant has to bear the expenses which shall be

reimbursed by the committee to the extent it ratifies. It is submitted that as

per explanation appended to Regulation 33 expenses include the fee to be

paid to the interim resolution professional. It is further submitted that in the

first meeting of the CoC a resolution was passed in regard to the payment of

Rs. 2 lakh to the newly appointed IRP which was resolved by e-voting in the

following manner:-

"Resolved That remuneration as professional fee of Rs. 2 Lakhs per month (plus applicable taxes) be and is hereby approved to the IRP, Mr. Rajubhai Patel, (IBBI/IPA-003/2017-18/10259) in the CIRP of Cooltech Containers Pvt. Ltd."

7. The main argument raised by Counsel for the Appellant is that the

Adjudicating Authority has not taken into consideration the fact that the

claim set up by the Appellant was not even considered/accepted by the IRP and in this regard, he has referred to the reply filed by the RP before this

Tribunal in which he has averred that:-

"That the contention made appellant that he has submitted the claim in Form B dated 24.08.2021 is vague and baseless. That the IRP has not received any claim from the Appellant and that undersigned has sent various reminders to file claim as operational creditor and also asked for details w.r.t. to corporate debtor."

8. It is thus submitted that if the claim of the Appellant (Operational

Creditor) is not even taken into consideration by the IRP then on what ground

the CoC is burdening the present Appellant with the Cost/Fee to be paid to

the IRP?

9. It is submitted that the impugned order is totally non-speaking, giving

no reason at all, even if, the Appellant was proceeded against ex-parte. It is

however submitted that had the Adjudicating Authority looked into all these

facts, the impugned order could not have been passed and the Appellant could

not have been forced to prefer this appeal under Section 61 of the Code. He

has therefore prayed that the impugned order may be set aside and the matter

may be remanded back to the Adjudicating Authority to decide the issue

involved afresh after hearing the Appellant and taking into consideration the

relevant facts and circumstances.

10. No one has represented the Respondent today at the time of hearing.

Therefore, the Respondent is proceeded against ex-parte.

11. We have heard Counsel for the Appellant and after perusal of the record,

are of the considered opinion that the issue involved in this case is as to

whether the Appellant shall be held liable to pay the cost/fee of the IRP on the ground that the claim of the Appellant has not been admitted by the IRP

and has been directed to pay entire fee of the IRP despite the fact that the

member of the CoC are the Financial Creditors.

12. Keeping in view the totality of the aforesaid facts and circumstances

narrated hereinabove, we find that the Adjudicating Authority has passed a

cryptic order without taking into consideration the aforesaid facts and

circumstances, even if , the Appellant who was the Respondent before it was

not present. In such circumstances, it would be just and expedient if the

impugned order is set aside and the matter is remanded back to take a

decision afresh after giving an opportunity to the Appellant and taking into

consideration the aforesaid facts and circumstances which we have been

narrated on the basis of the record before us.

13. With these observations, the present appeal is allowed, the impugned

order is set aside and the matter is remanded back to the Adjudicating

Authority to decide the application i.e. I.A. No. 851(AHM)2021, which is

hereby restored, by passing speaking order after affording an opportunity of

hearing.

The parties are directed to appear before the concerned Adjudicating

Authority on 24th February, 2023.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical) Sheetal/M.D.