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Judgment
Per: Janab Mohammed Ajmal (Member Judicial)
ORDER
This is an Application by the Corporate Debtor seeking the payment of the claim and withdrawal of the Company Petition.
Facts leading to the Application are that the Respondent J. J. Plastalloy Private Limited (hereinafter refer to as the Operational Creditor) filed CP (IB) No. 3775 of 2019 under Section 9 of the Insolvency and Bankruptcy Code, 2016 (the Code for short) praying to initiate Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor alleging default in payment of an operational debt to the tune of Rs. 2,82,244/- (Rupees Two lakhs eighty two thousand two hundred and forty four). The Corporate Debtor did not appear in the proceedings nor contested the matter. This Authority by an order dated 28th April, 2020 admitted the Company Petition initiating CIRP against the Corporate Debtor (Applicant). It appointed Mr. Hazari Lal Saini as the IRP.
It is submitted in the present Application that the Corporate Debtor had no knowledge of the Company Petition nor was it ever served with the copy thereof. It came to be aware of the CIRP when it received the order dated 28th April, 2020 from the Resolution Professional under the email dated 11th June, 2020. Since then the Corporate Debtor has been ready and willing to settle the matter, it accordingly sent an email on 16th June, 2020 to the IRP expressing its willingness to settle the matter with the Petitioner/ Operational Creditor. Since it did not receive any response thereto, it came up with the present Application seeking a direction to settle the matter and acceptance of the claim amount of Rs. 2,82,244/- (Two lakhs eighty-two thousand two hundred and forty four) towards full and final settlement of the claim and direct the withdrawal of the Company Petition on such settlement.
The IRP appeared on behalf of the Corporate Debtor and submitted that the CIRP costs also needs to be borne by the Applicant and there upon the matter can be settled. He has filed an abstract of costs to the following effect.
Details of CIRP Cost of Pasupati Flexipack Private Limited as on 30.06.2020
S.N o Expenses Amount in INR Paid [email protected] % Unpaid Remark 1. Professional Fees Hajari Lal Saini, IRP 250000 231250 18750 0 Order received on 15.05.2020 and payment received on 26.05.2020 from applicant therefore fees is considered for IRP Period 26.05.2020 to 30.06.2020 2. Advertisement Cost Riyo Advertisement 26355 26355 0 0 Public announcement was published in Financial express and Navakal Mumbai/Thane edition and Silvassa Mirror and Jandesh in Valsad edition on 28.05.2020, Amount paid on 27.05.2020 by H.L. Saini 3. Legal Fees Rishibh Dhanuka 15000 12000 3000 For Application filed in NCLT under Section 19 read Section 70 of the IBC, Amount paid on 22.06.2020 4. Factory Possession Advisor JDV Recovery Agency Limited 40000 0 0 40000 Five person came at Valsad for possession of factory on 23.06.2020 5. Travelling Expenses JDV Recovery Agency Limited 8000 0 0 8000 Visited Factory Premises on 23.06.2020 to take the possession from Ahmadabad 6. Travelling Expenses IRP 4000 0 0 0 Visited Factory Premises on 23.06.2020 to take the possession 7. Security Guard JDV Recovery Agency Limited 0 0 0 0 It was conditional appointment letter and if not need and not executed and therefore it has been considered cancel Rs. 15000/- P.M. per person Total Expenses : ₹. 3,43,355 Less: Paid by the OC (excluding TDS) : ₹. 2,31,250 Less: TDS Deducted : ₹. 18,750 Amount to be paid : ₹. 93,355
The expenses shown in the abstract indicates that an amount of Rs. 93,355/-(Ninety three thousand three hundred and fifty five) still remains to be paid. The initial amount of ₹. 2,50,000 ordered by this Authority to be paid by the Operational Creditor to the IRP was for meeting the initial expenses of the CIRP as specified in the order. It appears this amount has been wrongly considered to be the monthly fee payable only to the IRP. We make it clear that the initial amount to be deposited with IRP was for various preliminary activities relating to CIRP and not towards the fee of the IRP.
We stipulate ₹. 80,000/- as the total remuneration of the IRP (from 26.05.2020 to 30.06.2020). We do not approve the expenses towards the engagement of a recovery agency. The amount spent on that score needs to be excluded. The total expense thus comes to ₹. 1,44,105. The Applicant is required to bear the expenses. The balance (₹. 1,05,895) needs to be refunded by the IRP. The Applicant shall refund the amount to the Operational Creditor and the IRP in turn shall refund it to the Applicant (CD).
Considering the prayer made in the Application and the abstract of expenses submitted by the RP it will accordingly be appropriate to direct the Applicant to bear the CIRP costs as indicated in the previous para and settle the matter. Hence ordered.
ORDER
The Application be and the same is allowed. The Applicant (CD) shall pay the settlement amount of ₹. 2,82,244/- (Rupees Two lakhs eighty-two thousand two hundred and forty-four) and ₹. 2,50,000/- (Rupees Two lakhs fifty thousand) to the Respondent (OC) within a period of 15 (fifteen) days hence. On the payment being made the CP (IB) No. 3775 of 2019 shall be deemed to have been withdrawn. Failing which this Application shall stand dismissed without further reference to the Bench.
The IRP is directed to refund ₹. 1,05,895/- (Rupees One lakh five thousand eight hundred and ninety-five only) to the Applicant within the above period. Failing which the Applicant may take appropriate recourse to law for realization of the same.