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21.01.2025: I.A. No. 7996 of 2024: This is an application filed by the Resolution Professional seeking clarification of an order dated 28.02.2020 in relation to CIRP cost only.
It is the submission of Learned Sr. Counsel for the Applicant earlier an order dated 22.05.2019 was passed by the Ld. NCLT as under:
“9.The next qualification is about Corporate Insolvency Resolution Process Cost proposed to be paid at 9.36 Crores, which appears to be exorbitant and unfair. The governing body IBBI New Delhi has in one of its disciplinary order has made a similar observation that a resolution Professional is expected to be reasonable in demanding professional charges. Considering the nature of the professional services rendered, it shall be appropriate and reasonable to approve 2.00 Crores as Corporate Insolvency Resolution Process Cost. The balance surplus shall be appropriated against the liabilities of Operational Creditors to be distributed pari-passu. The Resolution Applicant had made a provision to settle the debts of operational creditors at a uniform rate of 2% which shall be increased proportionately.”
It is the submission of Learned Sr. Counsel for the Applicant that Company Appeal (AT) (Ins.) No. 728 of 2019 was preferred against the impugned order dated 22.05.2019 wherein this Tribunal vide judgment dated 28.02.2020 held:
“…..We are not interfering with the Impugned Order approving the Resolution Plan, except using following words for enforcing modification 'b' referred in paragraph 13 (Supra). We direct that Monitoring Committee will enforce the modifications made by the Adjudicating Authority & add the part of money diverted from the head of CIRP costs to the dues payable to Operational Creditors so as to proportionately increase the 2% payable to each operational creditor against their respective claims admitted & pay on priority in terms of Regulation 38 (1) of the Regulation (Note 5 - Page 46 of Resolution Plan r/w Section 8 at Page 53 - Diary No. 17213.)”
It is argued by the Learned Sr. Counsel for the Applicant the order dated 22.05.2019 qua cost as enumerated in its para 9 as above was later modified by the Ld. NCLT vide its order dated 25.10.2019 as under:
“5.In view of the above clarification, and since the Committee of Creditors had already approved the expenditure incurred, the full amount of ₹9,36,00,000/- mentioned in Para 9 of the impugned Order dated 22.05.2019 cited supra, is hereby allowed as Corporate Insolvency Resolution Process cost (instead of ₹2.00 Crores).”
It is further argued this modification vide dated 25.10.2019 was never brought to the notice of the Ld. NCLT when it passed judgment dated 28.02.2020.
Now there is yet another order 11.10.2023 passed by the Ld. NCLT to the following effect:
“IA.No.4453/2023: Sr. Adv. Mr. Gaurav Joshi a/w Adv. Ankit Lohia and Adv. Varun Nathani appeared for the Resolution Applicant. Adv. Pulkit Sharma i/b Adv. Ajinkya Kurdukar appeared for the State Bank of India. Adv. Bhagyashree Lembee appeared for the IDFC First Bank. Adv. Saurabh Patil a/w Adv. Anushka Dhole appeared for the Operational Creditor. This IA has been filed by the applicant under Section 60(5) of the IB Code read with Section 11 to take on record the Consent Term executed between the applicants/ Resolution Applicants and the Respondents / Financial Creditors i.e. State Bank of India and IDFC First Bank which were the only members of the CoC. It has been pointed out that there was some dispute between the parties after the approval of the Resolution Plan by this court on dated 22.05.2019 which was subsequently modified on 25.10.2019. The said dispute has since been resolved and Consent Terms have been executed between the Applicants and Respondent No.1 on 28.08.2023 and further between the Applicants and Respondent No.2 on 27.09.2023. It has been requested that the Consent Terms be taken on record and the Resolution Plan be allowed to be implemented in terms of the consent term taken on record by this court. Accordingly, considering the facts that, by way of the consent terms, all the disputes with regard to the implementation of the resolution plan have been resolved, and it would be in the fitness of things if the consent terms are taken on record and order to be implemented from the date of this order. I.A. No. 4453/2023 is allowed and disposed of accordingly.”
It is the submission of Learned Counsels from both sides the resolution plan has since been implemented as per the consent terms as noted in order dated 11.10.2023 above thus in fact no clarification as such is required but since order dated 28.02.2020 confirms the order dated 22.05.2019, the Ld. NCLT had directed the Applicant to file this application and seek clarification.
Considering the orders passed by the Ld. NCLT in 2019 and 2023 as well as the statement of the Counsel appearing for the Successful Resolution Applicant that the resolution plan is already implemented, we are of the opinion no further clarification is required at this stage.
I. A. No. 7996 of 2024 is disposed off in the aforesaid terms.