Salem Stainless Stell Suppliers Pvt. Ltd. vs Rajubhai Patel

Per: Justice Rakesh Kumar Jain: (Oral)

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.

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.”

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).

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Appellant submitted that there is no settlement, therefore, I.A. No. 26 of 2021 was not pressed and was allowed to be withdrawn.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: -

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.

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:-

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:-

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?

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.

No one has represented the Respondent today at the time of hearing. Therefore, the Respondent is proceeded against ex-parte.

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.

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.

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 24^th February, 2023.