Sunil Kumar Agarwal vs Hdfc Bank Ltd & Ors

IN THE MATTER OF: Sunil Kumar Agarwal ...Appellant

Versus

HDFC Bank Ltd. & Ors. ...Respondents

Present: For Appellant : Ms. Honey Satpal and Mr. Nipun Singhvi, Advocates For Respondents :

ORDER

12.04.2023: This appeal is against the order dated 13.01.2023 by which

the Adjudicating Authority (NCLT, Ahmedabad) has rejected I.A. No. 885 of

2020 filed by the Appellant claiming payment of Fee as IRP.

2. CIRP was initiated on 15.10.2019 and Appellant was appointed as IRP

and continued till resolution was passed by CoC to relieve the Appellant and

new IRP was appointed on 08.09.2020, who thereafter has been conducting the

proceeding. There were certain issues with regard to fee by the Appellant.

Appellant earlier had filed I.A. No. 449 of 2020 which was decided by the

Adjudicating Authority by an order dated 08.09.2020 wherein the COC was

directed to pay the CIRP cost of the IRP. Subsequently to that, there was

further application which was filed by the Appellant being I.A. No. 885/2020.

While hearing I.A. No. 885/2020, the Adjudicating Authority passed the

following order on 17.02.2022:

Company Appeal (AT)(Insolvency) No. 360 of 2023 Page 1 of 6

"ORDER IA/853 of 2021 Order Reserved.

IA/885/2020 The Learned Counsel for erstwhile IRP states that in compliance of the order dated 27th September, 2021 an amount of Rs. 21.00 lacs as directed, being undisputed amount, stands paid by CoC as on date. The issue now limited in this Application is the amount which though approved by CoC, but not being paid by present RP on the ground that the CoC had not approved/ratified it. Since, there is already a complaint filed before IBBI pending consideration, let this matter also be considered by the IBBI along with that complaint and report be filed before the next date of hearing.

List the matter on 18.04.2022."

3. After the order passed by the Adjudicating Authority dated 17.02.2022, a

complaint which was filed by the Appellant against the new IRP which was

examined by IBBI and a report has been submitted dated 20.05.2022 opining

that the complained filed by IRP/Appellant lacks merit. It was noted in the

Report that IRP has been paid Rs. 20,89,068/- towards Fee and further

amount of 13,70,699/- which was claimed by the Appellant was not approved

by the CoC. The said Report was noted by the Adjudicating Authority and

Adjudicating Authority relying on the said Report had rejected the I.A. No. 885

of 2020 on 13.01.2013. Aggrieved by the said order, this appeal has been filed.

Company Appeal (AT)(Insolvency) No. 360 of 2023 Page 2 of 6

4. Learned Counsel for the Appellant challenging the order contended that

the amount of Rs. 20,89,068/- was undisputed and hence the rest amount was

to be paid to the Appellant.

5. We have heard the Appellant and perused the records. There is no

dispute that the Appellant has received the amount towards Fee which was as

per earlier order of the Adjudicating Authority upto Rs. 20,89,068/-. Insofar as

claim of Rs. 13 lakhs and odd, the same was examined by the Board (IBBI) and

Board by its detailed report dated 20.05.2022, has noted the complaint of the

Appellant, obtained inputs from the IRP, against whom the complaint was filed

and Board in its Report in paragraphs 10 to 14 made the following

observations:

"10. That upon perusal of resolution 1 of summary of e-voting, on

approval/ratification of insolvency resolution process cost incurred

by erstwhile IP, of the 13th CoC meeting, it is observed that -

a) An amount of Rs. 20,89,068/- detailed as under, was approved

by the CoC.

Sr. Particulars Amount in Rs. No. 1. Advertising Expense 2,95,492.00 2. Professional Fee of Advocate 1,60,000.00 3. Professional Fee of Valuer 2,50,086.00 4. Verification of assets/transfer of buses 1,28,760.00 5. Electricity Expenses 87,730.00 6. Professional Fees of erstwhile IP 11,67,000.00 Total 20,89,068.00

Company Appeal (AT)(Insolvency) No. 360 of 2023 Page 3 of 6

b) An amount of Rs. 13,70,699/- detailed as under, was not

approved by the CoC-

Sr. Particulars Amount in Rs. No. 1. Out of Pocket Expenses 1,05,000.00 2. Professional Accounting Firm Fee for 35,000.00 FY 2019-20 3. Forensic Auditor Fee 3,54,000.00 4. CoC meeting expenses 23,000.00 5. Salary of Staff 3,52,333.00 6. Rent for Warehouse (Parking of 7 2,25,246.00 Buses) 7. Security Expenses 2,76,120.00 Total 13,70,699.00

11.That Hon'ble NCLT vide its order dated 17.02.2022, records that an amount of Rs. 21 lakh stands paid to the erstwhile IP.

12. That regulation 34 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 clearly provide that the CoC shall fix the expenses of the resolution professional and such expenses shall constitute insolvency resolution process cost.

13. That in the instant matter, CoC has deliberated on the fees and expenses of the erstwhile IP, in detail, and has accordingly ratified the expenses after its detailed deliberations. CoC observed that the expenses which are claimed by the erstwhile IP other than what is ratified by the CoC, are not substantiated with proper

Company Appeal (AT)(Insolvency) No. 360 of 2023 Page 4 of 6 information/document. Accordingly, these expenses are not paid to the complainant.

14. That accordingly, IBBI examined the issue of unpaid fees/expenses to the erstwhile IP and has disposed of the complaint of erstwhile IP without any further action as it lacks merit."

6. Appellant was admittedly relieved from the CIRP proceeding after the

resolution of CoC which was accepted by Adjudicating Authority and new IRP

has been taking steps in the CIRP. The Appellant has been filing application

only for Fee and expenses. The Appellant has filed a complaint against the new

IRP that he is not paying his Fee, which complaint was taken cognizance by the

IBBI and noticed by Adjudicating Authority and Adjudicating Authority had

observed that IBBI may look into the said complaint and take appropriate

decision.

7. When IBBI considered the complaint of the IRP and held that the said

complaint has no merit since whatever Fee approved by CoC have been paid,

we see no reason to find error in the order of the Adjudicating Authority

rejecting I.A. No. 885/2020. IBBI, with whom complained has been made,

examined the claim of the Appellant and found no merit in the complaint by

holding that the Appellant has been paid Fee of Rs. 21 lakhs.

8. In the present case we see that Section 9 application, the claim by the

Operational Creditor was about Rs. 50 lakhs and odd. The Appellant has

Company Appeal (AT)(Insolvency) No. 360 of 2023 Page 5 of 6 admittedly received Fee of Rs. 21 lakhs and he is still unsatisfied and litigating

the matter further.

We see no merit in the appeal. Appeal is dismissed with cost.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical) akc/nn

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