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Judgment
[Ms. Manorama Kumari, Member (Judicial)
CP(IB)No. 248/2018 was filed by the Proprietor of M/s Western Pharma under section 9 of the Insolvency and Bankruptcy Code, 2016 hereinafter referred to as IB Code, read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authorities) Rules, 2016 seeking reliefs under section 9 of the IB Code in respect of M/s. Osaka Pharmaceuticals Private Limited, a company having its registered office at Ahkarba, Dist. Baroda treating as a Corporate Debtor. 1.2 This Adjudicating Authority admitted the said CP(IB) No. 248/2017 on 10.10.2018 and appointed Shri Hiten M. Parikh, as the Interim Resolution Professional (hereinafter referred to as "IRP"). However, CoC, in its first meeting held on 12.11.2018 replaced the IRP, so appointed by this Adjudicating Authority, unanimously and appointed Mr. Abhishek Nagori, as the Resolution Professional, hereinafter referred to as "RP". 1.3 In the meantime, the IRP, so appointed by this Adjudicating Authority, has already made public announcement on 15.10.2018 calling upon the claims from the creditors in view of the order dated 11.10.2018 of this Adjudicating Authority.
The RP of the Corporate Debtor Company, in the meantime, has filed IA No. 439 of 2019 in Company Petition (IB) No. 248 of 2018 for liquidation of the Corporate Debtor Company Osaka Pharmaceuticals Limited under section 33(1) and 33(2) of the Insolvency and Bankruptcy Code, 2016 and for the appointment of the Liquidator, which is pending for adjudication.
That before filing of the application being IA No. 439 of 2019 under section 33 of the IB Code by RP and during the pendency of the said IA No. 439 of 2019, while the notice was issued to the Suspended Management of the Corporate Debtor company as well as to the CoC, the various Interlocutory Applications as mentioned above in the Title Page being 14 in number, were/are filed by the various Operational Creditors more or less on the filmsy/similar grounds viz. either their claims were not accepted on account of delayed submission or submission of claims not in appropriate forms by the RP.
Heard the Ld. Counsels of the above mentioned Interlocutory Applications. On perusal of the records, it is found that RP has rejected the claims of the Operational Creditors as stated above. Thus, before disposal of the IA 439 of 2019 for liquidation of the Corporate Debtor company, it is imperative to dispose of the Interlocutory Applications filed by the various Operational Creditors under section 60(5) of the IB Code.
We, the Adjudicating Authority, at this Bench have gone through all the Interlocutory Applications filed by the Operational Creditors as mentioned above and also gone through the judgments passed by the various contemporary authorities as well as by this Bench of this Tribunal. This Adjudicating Authority, is of the considered view, as observed in the case of Reliance Industries Ltd., Vs. Satish Kumar Gupta, IA No. 54 of 2019 & CP(IB) No. 39 that Resolution Professional is not vested with any adjudicatory power. He is legally expected to collate and verify the claim submitted before him by the various claimants and to place the same before the CoC for proper consideration under the provisions of section 21 and in case, if any need arises for clarification(s)/direction(s), he is expected to approach the Adjudicating Authority under the relevant provisions of the IB Code.
Moreover, in the judgment passed by the Hon'ble NCLAT in the matter Arcelor Mittal Vs. Essar Steel India, Operational Creditors are to be treated on a par with Financial Creditors at the time of settling claims.
In view of the above referred judgments and the facts and circumstances as above, the Interlocutory Applications so filed by the Applicants/Operational Creditors are allowed. The RP is hereby directed to register the claims of the Applicants in the list of the Operational Creditors/Claims so as to apprise the CoC for its consideration and communicate to the Applicants urgently enabling this Bench to consider IA No. 439 of 2019 filed under section 33 of IB Code for liquidation of the Corporate Debtor Company.
Accordingly, all the above applications are allowed and stand disposed of. No order as to cost.
The RP is further directed to report in IA No. 439 of 2019 which is fixed for hearing on 16.08.2019 for necessary orders for the liquidation of Corporate Debtor Company Osaka Pharmaceuticals Limited.
Any other IA(s), if pending, also stand(s) disposed of in view of the above order.