State Bank Of India And Ors. vs Rohit Ferro Tech Limited And Ors.

Harish Chander Suri, Member (T)

Two I.As., One I.A.(IB) No. 611/KB/2020 filed by M/s. MSTC Limited under section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of National Company Law Tribunal Rules, 2016, seeking grant of leave to conduct auction and to have access to the Plant of the respondent No. 1 at Jajpur, Odisha and for inspection and for removal of the said goods upon completion of sale through e-auction/tender to be conducted by the applicant. Another I.A. (IB) No. 620/KB/2020 filed by Mr. Supriyo Kumar Chaudhuri, Resolution Professional of the Corporate Debtor under section 14(2) and section 60 of the Insolvency & Bankruptcy Code, 2016, seeking orders of injunction be passed restraining the Respondents from disconnecting the electricity supply at the Bishnupur plant of the corporate debtor till completion of the corporate insolvency resolution process.

Due to COVID-19 situation lockdown was declared and is still continuing partially, the normal operation of NCLT Kolkata Bench is yet to be resumed. Being satisfied with the urgency set out in the applications the petition were listed for hearing on today (21.08.2020) through Video Conference.

Vide order dated 7th February, 2020 the Corporate Debtor M/s. Rohit Ferro Tech Limited was ordered to undergo Corporate Insolvency Resolution Process and Mr. Supriyo Kumar Chaudhuri was appointed as the Interim Resolution Professional to oversee the Insolvency Resolution Process. It is stated that the applicant in I.A. 611/KB/2020 is, inter alia, engaged in the business of trade pertaining to purchase, import and sale of diverse commodities. The applicant in the usual course of business imports and procures raw material on facilitator mode as well as on purchase and sale mode. Essentially, the applicant procures raw material which is thereafter stored in the precincts of its customers for whom the materials are procured and such materials/goods remain pledged with the applicant. Upon receipt of payment from the customers, the goods are de-pledged and taken over by the concerned customer. Therefore, the applicant remains the owner of the goods after making payment of the consideration until the time its customer or constituent makes payment in respect of the goods. It is submitted that the Corporate Debtor, the Respondent No. 1 has been a customer of the applicant since 2010 when a Memorandum of Agreement was entered into between the applicant and Respondent No. 1, for procurement of goods. The applicant had procured goods for Respondent No. 1 and presently has a claim in excess of Rs. 47 crores. The goods which were procured were in the custody of third party custodian under the Tripartite Agreements entered into between the applicant, Respondent No. 1 and the custodian. In the precincts of Respondent No. 1's factory at Jajpur, Odisha, there should be goods worth in excess of Rs. 47 crores. These goods are all pledged to the applicant having been procured under the agreements.

It is further submitted that the applicant had also filed a suit in the Hon'ble High Court at Calcutta. An interlocutory application was also filed in the said suit in the Hon'ble High Court. An ex parte order dated 17th February, 2020 was passed by the Hon'ble High Court at Calcutta, in terms whereof, a Special Officer was appointed for the purpose of inventorisation of the pledged goods, which belong to the applicant. However, on the applicant coming to learn of the admission of the present proceedings being CP(IB) No. 1214/KB/2018 (State Bank of India -vs-Rohit Ferro Tech Limited) made on 7th February, 2020 by this Hon'ble Tribunal, the matter was mentioned and the matter was ultimately withdrawn. The cause of action for the applicant in obtaining an order of Special Officer to make inventory was that there had been unauthorized removal of the pledged goods in an unabated manner from the Jajpur Plant of the Respondent No. 1. In fact, the Corporate Debtor and its promoters, the Respondent Nos. 1 to 5 are responsible for the unauthorized removal of the pledged goods, causing huge financial losses to the applicant. It is submitted that the applicant repeatedly requested the Respondents to prevent unauthorized removal of the pledged goods immediately and holding the respondent No. 1 liable for the losses caused thereby to the applicant, in terms of the agreements with respondent No. 1. However, the Corporate Debtor/Respondent No. 1, its erstwhile Directors and the Resolution Professional have not taken steps and this has led to lodging of police complaints by the applicant with the local police station at Jajpur, vide letter dated 19th November, 2019 and 28th February, 2020. Ultimately, upon a writ being petition bearing No. CRLMP 407/2020 has been filed by the applicant on 12th March, 2020 in the Hon'ble High Court at Orissa, praying for directions on the local Superintendent of Police and ors. for registering the police complaint/FIR lodged by the applicant. The applicant is desirous of selling the goods by public auction. The applicant is in the process of issuing a Notice Inviting Tender for the same. The applicant being a Public Sector Undertaking, under the Govt. of India, cannot enter into a contract with a private entity to dispose of the goods. For the purpose of conduct of the auction/tender, the applicant seeks permission to the bidders to access the goods for inspection and removal after purchase. However, the Respondent No. 5 is not in a position to cooperate with the same.

It is stated by learned counsel that the removal has been done by the suspended Board of Directors. He referred to page 16 which is a Memorandum of Pledge entered into between M/s. Rohit Ferro Tech Limited, the Corporate Debtor and M/s. MSTC Limited, the Applicant on 1st day of June, 2018, which reads as under:-

"The articles/goods deposited or cause to be deposited with you to be held as a security for the payment to you within 180 days from the date of arrival of shipment at factory premises of the sum of Rs. 14,53,85,372/- (Rupees Fourteen Crores Fifty Three Lakh Eighty Five Thousand Three Hundred Seventy Two Only) which you have advanced to us together with interest. We hereby authorise and empower you in the event of non payment there-of within that period to sell the same or cause the same to be sold at any time in any way you may think proper at our risk and at our account and out of the proceeds of such sale after paying all costs and charges and expenses of any incidental to the same to retain appropriate the said sum of Rs. 14,53,85,372/- and the interest and to pay the balance if any to us. You would not be liable for any loss or damage to the said article/goods unless caused by your own wilful negligence in case of any shortfall and we shall remain responsible to pay for the same to you with interest of the aforesaid rate".

The applicant has prayed that directions be issued to Respondent No. 5 to allow inspection of the goods at the Jajpur plant of the Respondent No. 1 to the applicant's bidders and permit removal of the pledged goods by the successful bidders upon necessary instructions being issued by the applicant and the applicant may be allowed to deploy the guards for the protection of the applicant's goods at the Jajpur plant of the Respondent No. 1.

During the course of arguments, the applicant submitted that the Corporate Debtor required chrome ore and thus entered into agreements with the applicant between 2010 and 2018. The applicant procured chrome ore and kept the same at Corporate Debtor's factory. The Corporate Debtor would pay the applicant and used the goods. From procurement and until the time the goods were made over to the applicant for use the same would remain pledged. If Corporate Debtor did not pay, the plaintiff was entitled to sell the goods, under the pledge documents. There is a custodian in charge of the goods, selected jointly by the applicant and Corporate Debtor, who is however now not protecting the goods.

By February, 2020, the applicant had claims in excess of Rs. 47.00 crores. It filed a suit and obtained an order appointing Receiver dated 17th February, 2020. It then came to learn of the admission of Corporate Debtor in CIRP by an earlier order dated 7th February, 2020 and it had the order discharged on 21st February 2020. The learned counsel submitted that the High Court found prima facie merits in the applicant's case which is why it passed the order dated 17th February, 2020. It is further submitted that from 2019, R-2 to R-4 (suspended Board of Corporate Debtor) have been unauthorizedly removing goods as has been intimated by the Custodian from time to time. It is submitted that in spite of the Complaint made to police, and the writ petition filed in Orissa for a direction upon police, R-2 to R-4 with their associate are unauthorizedly removing goods.

The learned counsel further submitted that on 26th February, 2020, volumetric assessment of goods was done and it was found that only 11,300 MT remain). R-2 to R-4 have removed 28,189.396 MT of a value of Rs. 33.5 crore. That there was previously 39,489 MT is undisputed. He further submitted that Continuous removal has resulted in loss over Rs. 35 crore to Corporate Debtor. It is continuing and must be stopped. The applicant, a Central Government entity should be allowed to sell the goods by auction and till then, should be allowed to protect the goods by deploying security. It was further submitted that the pledgor has waived his right to receive notice under Section 176 of the Indian Contract Act. He further submitted that in spite of the High Court order in its favour, they could not enforce the order because of the orders passed by this Tribunal under Section 14 of the Code, declaring CIRP against the CD. It is further submitted that the applicant has right to the raw material which is pledged to them and that since the applicant has paid to the shipper, they have the right to sell the goods as well inasmuch as the CD has not paid, so they cannot be allowed to remove the said material. They will have to pay first to have the goods de-pledged. Since the RP was requested and he allowed the inventory to be prepared on 26th February, 2020, and it was found that goods worth more than Rs. 40 crores had been removed and even thereafter the goods have been removed. Part of the goods had been removed even prior to the order of CIRP.

The learned counsel claimed that the right of the applicant to sell the goods even during the CIRP, is established from the contents of the agreements, and the same is binding on the R.P. and everybody concerned. It is argued that it is the duty of the RP to take pro-active steps and protect the goods. The learned counsel further argued that the goods are not in the custody of the Corporate Debtor (CD) although they are lying in the premises of the CD. According to him, it is not the asset of the CD.

Ld. Counsel also referred to page 93 of the application, which is a letter written by the applicant to the Corporate Debtor on June 10, 2020, which is reproduced hereunder:-

"Please refer to the trailing mail just now received from MSTC's Custodian, M/s. CRWC. They have intimated that materials pledged in favour of MSTC has again been unauthorisedly removed and lifted from heap No. 10 at Rohit Ferro Tech Limited plant at Jajpur and has been replaced by mere Ash to camouflage the lifting/removal. The picture sent by MSTC's custodian is attached herewith.

Since RFTL is undergoing IBC proceedings and consequently the RFTL plant at Jajpur, Odisha is now under your control and supervision, such repeated unauthorised removal of material pledged to MSTC (Chrome ore) at RFTL, Jajpur is clearly indicative of mala fide intention, against the financial interest of MSTC. Since no payment has been made to us for such unauthorised removal reported by our custodian.

Accordingly, you are requested to make payment for the material consumed or return the material that has been unauthorisedly lifted. The matter is being viewed very seriously at our end and you are requested to advise your Officials at RFTL Plant to desist from any such illegal activity if no payment is forthcoming. We shall be constrained to take the matter forward".

He further referred to Section 14(1)(d) of the Code, which says that under the law if possession is with the Custodian, the pledge could not have happened. Custodian is not a party in this case. As on today raw-materials though kept in the premises of Corporate Debtor is not the liquidation estate of the Corporate Debtor.

To buttress his arguments, the Ld. Counsel is relying on judgments (2010) 12 SCC Page 458 para 15. He submits that part of the removal is prior to CIRP period. Custodian issued a notice of its removal. Custodian is a Govt. Agency who is having a tripartite agreement between the applicant, the Corporate Debtor.

Ms. Swati Dalmia, Ld. Counsel appeared for the RP and submitted that the Applicant is facilitating the Letter of Credit. The Corporate Debtor has pledged the goods in favour of the Applicant. On the other hand, the Applicant is complaining that the Corporate Debtor cannot claim the goods as their goods. Under Section 14 of IBC, when the moratorium is on 14(1)(c) will apply. She submits that total amount of the security which has been pledged comes approx. 35000 MT but the claim of the applicant is 40000 MT. 5000 MT has not been pledged by the Corporate Debtor in favour of the applicant. The charge has not been created by the CD in favour of the applicant. The applicant is making the same claim again and again. There had been unauthorised removal of goods after the CIRP process.

It is submitted by her that the CIRP started on 07-02-2020. The RP has taken charge of the Plant on 10-02-2020. Inventory was prepared on 26-02-2020. The same goods were brought to the notice of the Hon'ble High Court in a suit and not two separate goods and the same goods have been brought before this Adjudicating Authority. Again they are coming here and asking for protection and sale of the security which cannot be done.

Mr. Sabyasachi Chaudhary, learned counsel for the suspended Board of Directors submitted that the order of admission of the petition was passed on 7th February, 2020 and the inventory is stated to have been prepared for the first time on 26 the February, 2020, all the allegations made in the present application are post-CIRP process. It is submitted that the payment was to be paid within 180 days from arrival of the goods, and that the contract were entered into 2018-19. It is stated that there is a custodian who is in-charge-of the goods and it is in the close factory premises. It is submitted that there is nothing to show that what was the quantity prior to the CIRP order, or even before 26th of February, 2020 which the inventory was prepared. It is submitted by the learned counsel that the erstwhile promoter has nothing to do with it. It is stated that after the order of CIRP, it is in the custody of the RP, and therefore, they do not have any cause of action against the erstwhile directors. For seeking any action against the suspended board of directors, they will have to show as to what the position prior to the order of CIRP had been.

Heard the Counsel at length and perused the records. We do not find any substance in the arguments of the applicant that he still has any right to the goods or raw material lying in the premises of the CD, even after the order of CIRP. The provisions of the Code are very much clear in this regard. The RP is the final authority who will take possession of the moveable and immovable properties of the CD after the order of CIRP. Anybody has any claim against the CD, it will have to submit its claim to the RP. What is admittedly true in this matter is that the applicant has already submitted its claim and its claim has already been admitted and taken on record, which hardly leaves any scope for the applicant to further claim any right to possession, or hold any auction sale thereof as prayed for.

The application I.A. (IB) No. 611/KB/2020 in C.P.(IB) No. 1214/KB/2020 is thus to be dismissed as being devoid of any merit or substance. The R.P. shall however, deal with the claim of the applicant along with other operational creditors. The I.A. (IB) No. 611/KB/2020 in C.P.(IB) No. 1214/KB/2020 is disposed of accordingly.

There shall be no order as to costs.

I.A. (IB) No. 620/KB/2020

The present I.A. (IB) No. 620/KB/2020 has been filed by Mr. Supriyo Kumar Chaudhuri, Resolution Professional of the Corporate Debtor appointed by order dated 7th February, 2020, under section 14(2) and section 60 of the Insolvency & Bankruptcy Code, 2016. Pursuant to the aforesaid order and in accordance with the provisions of the Code and the Regulations framed thereunder, the Applicant was continuing with the process of CIRP. It is submitted by the Applicant that the Corporate Debtor is engaged in the business of manufacturing and dealing in ferro alloys, stainless steel and mild steel. The principal place of business of the Corporate Debtor is in Kolkata, West Bengal, however, the Corporate Debtor also carries on its business from Bishnupur, Bankura District in West Bengal. The Corporate Debtor has a manufacturing plant located at Bishnupur Industrial Growth Centre of WBIIDC (West Bengal Industrial Infrastructure Development Corporation) located at Dwarika, Bankura District, West Bengal. The Bishnupur plant is spread over about 28 acres of leasehold land. The plant has two divisions, namely, ferro alloy division (FAP) and stainless-steel plant (SSP). The FAP division has two 7.5 MVA submerged electric arc furnace and three 9MVA submerged electric arc furnace along with a briquetting plant, raw material handling system, and material recovery system. The FAP division is mainly engaged in manufacturing high carbon ferro chrome, HC ferro manganese, HC sillo manganese and ferro silico. The SSP division has 2 x 15T induction furnace, AOD Converter-1 x 35T, Billet Caster (6/11)-1x2 strand, rolling mill with single drives-1 x 18TPH, LRF-1 x 35T in operating condition. At the SSP division, the Corporate Debtor also interchangeably manufactures Mild Steel Billets. Just prior to the lockdown being imposed by the government due to the pandemic (Covid - 19) the plant had been operating at an average of 7,500 Metric Tonnes capacity. The plant has been operating in 3 (three) shifts of 8 (eight) hours each with total on-roll manpower (employee) strength of 139 persons and contractual (off roll) workmen staff of about 587, totaling 726 staff, executives and workmen. Since the inception the Respondent No. 1 has been supplying power/electricity at the Bishnupur plant of the corporate debtor to enable the corporate debtor to conduct the manufacturing activities therein. For the purpose of obtaining supply of power/electricity for industrial use the corporate debtor entered into an agreement dated 2nd March, 2010 with the Respondent No. 1 for supply of electricity at the Bishnupur plant of the corporate debtor of a contract demand of 15000 KVA per year. The Respondent No. 1 has allotted the corporate debtor a consumer identification number being 932324100.

It is further submitted that immediately, after taking charge of the affairs of the Corporate Debtor, the Applicant by letter dated 14th February, 2020 intimated the Respondent No. 3 about the commencement of the CIRP of the Corporate Debtor and requested the Respondents to submit their claim of outstanding amount in the prescribed format as per the provisions of the Code. Thereafter, Respondent Nos. 4 and 5 raised an invoice bearing No. 645500089671 dated 5th March, 2020 for the month of February, 2020 amounting to Rs. 7,77,33,152/- including outstanding dues for the months of December, 2019 and January, 2020 amounting to Rs. 4,90,14,590.32/-. The due date for payment of the said invoice was 16th March, 2020, i.e., within 10 days from the date of issue of invoice. By a letter dated 13th March, 2020 the Applicant requested the Respondent No. 3 to bifurcate the invoice (bearing No. 645500089671 dated 5th March, 2020) for the month of February, 2020 into two separate invoices, i.e. one invoice relating to the pre-CIRP period (upto 6th February, 2020) and the other invoice for the period commencing from 7th February, 2020 to 29th February, 2020. The Applicant also requested the Respondent No. 3 to file its claim in accordance with the provisions of the Insolvency & Bankruptcy Code, 2016 for its dues relating to the pre-CIRP period. The Applicant states that the Applicant has not yet received any response to the aforesaid letter requesting for the bifurcation of the invoice for the month of February, 2020. On non-payment of the invoice for the month of February, 2020 within the due date (i.e., 16th March, 2020), the Respondent No. 4 issued a notice bearing No. C/BC/BAN/39/3591 dated 17th March, 2020 to the corporate debtor thereby giving a further time period of fifteen clear days to make payment of the outstanding amount of Rs. 7,71,94,553/- (which includes outstanding pre-CIRP dues for the months of December, 2019 and January, 2020 amounting to Rs. 4,90,14,590.32/-) under section 56(1) of the Electricity Act, 2003 failing which the power supply at the premises would be liable for disconnection without issue of further notice.

The Applicant states that considering the impact of the pandemic (Covid -19) the Government of India imposed a lock down in the country with effect from 25th March, 2020 and in compliance thereto the Bishnupur plant of the corporate debtor was completely shut down. All operations of the corporate debtor at the Bishnupur plant came to a complete standstill which led to further worsening of its financial position and resulted in acute liquidity crunch during this unprecedented lock down period. In the meantime, the Respondent Nos. 4 and 5 raised another invoice bearing No. 635000093078 dated 4th April, 2020 for the month of March, 2020 amounting to Rs. 10,40,84,356/- including dues relating to the pre-CIRP period wherein the amount levied for the month of March, 2020 is Rs. 2,68,54,087.86/-. The due date for payment of the said invoice was 15th April, 2020 i.e. within 10 days from the date of issue of invoice. The Applicant issued another letter to the Respondent No. 3 dated 16th April, 2020 once again requesting the Respondents to file its claim for the pre-CIRP period in accordance with the provisions of the Insolvency & Bankruptcy Code, 2016 and bifurcate the invoice for the month of February, 2020 into two separate invoices, i.e. one invoice relating to the pre-CIRP period (upto 6th February, 2020) and the other invoice for the period commencing from 7th February, 2020 to 29th February, 2020. The Applicant also requested the Respondents not to take any coercive action against the corporate debtor including disconnection of electricity, the same being an essential service under the provisions of the Code and also since the same would jeopardize the going concern status of the Corporate Debtor. The Applicant apprised the Respondents about his difficulties to make payment under the prevailing difficult circumstances which were beyond the control of the corporate debtor and requested for further time for payment of dues to the Respondent No. 1 relating to the CIRP period.

Subsequently, the Respondent No. 4 and 5 raised another invoice bearing No. 630000094104 dated 5th May, 2020 in favour of the corporate debtor for the month of April, 2020 amounting to Rs. 10,97,93,143/- including outstanding dues relating to the pre-CIRP period wherein the amount levied for the month of March, 2020 is Rs. 52,97,654.05/-. The due date for making payment of the same was 15th May, 2020 i.e. within 10 days from the date of issue of invoice. The Applicant states that due to the liquidity crunch and imposition of lockdown on account of Covid - 19 the Applicant is unable to cause the Corporate Debtor to make any further payments to the Respondent No. 1 as the production and dispatch activities had been stopped in absence of which there has not been any cash inflow. The Applicant states that the amount of Rs. 10,97,93,143/-claimed by the Respondents by its invoice bearing No. 630000094104 dated 5th May, 2020 included amount relating to the pre-CIRP period. However, it was noticed that a bifurcation of the said amount for the period prior to CIRP and during CIRP has not been provided despite several requests having been made to the Respondents in this regard. The aforesaid amount claimed by the Respondents, includes an amount of Rs. 4,90,14,590.32/- relating to the months of December, 2019 and January, 2020 (i.e., prior to the CIRP period). Furthermore, the aforesaid amount also includes dues relating to the period 1st February, 2020 to 6th February, 2020 which cannot be ascertained by the Applicant.

The Applicant submits that despite facing acute liquidity crises which further got aggravated due to the lockdown imposed by the government on account of pandemic (Covid 19) on 15th May, 2020, the Applicant caused the corporate debtor to make payment of Rs. 50,00,000/- (Rupees Fifty Lakhs Only). The Applicant submits that considering the part payment of Rs. 50,00,000/- made by the corporate debtor to the Respondent No. 1 on 15th May, 2020, the current outstanding amount payable to the Respondent No. 1 is Rs. 10,47,93,143/- [Rs. 10,97,93,143/- (minus) Rs. 50,00,000/-] less the dues pertaining to the pre-CIRP period. The Applicant states that the dues in relation to the period prior to the commencement of CIRP (i.e., upto 6th February, 2020) cannot be paid by the Applicant at the current moment as per the provisions of the Code. The applicant has prayed for an order of injunction restraining the Respondents from disconnecting the electricity supply at the Bishnupur plant of the corporate debtor till completion of the corporate insolvency resolution process. It is further prayed that an order of injunction be passed restraining the Respondents from taking any coercive step against the corporate debtor in furtherance to its disconnection notice bearing No. C/BC/BAN/39/3591 dated 17th March, 2020 including disconnection of electricity supply at the Bishnupur plant of the Corporate Debtor [having consumer identification number 932324100]. It is further prayed that the Respondents be directed to bifurcate the amount claimed by the Respondents in its invoice bearing No. 645500089671 dated 5th March, 2020 for the month of February, 2020 into two separate amounts, i.e. one relating to the pre-CIRP period (upto 6th February, 2020) and the other for the period commencing from 7th February, 2020 to 29th February, 2020 and intimate the same to the Applicant and/or the Corporate Debtor; and that the Applicant be given a time of 90 (ninety) days to pay the outstanding amount relating to the CIRP period upon intimation of such amount by the Respondents.

The learned counsel further submitted that late payment surcharge is being repeated in every bill and this is without giving any break-up whether the delayed payment surcharge relates to the period before the CIRP or not. She submits that the applicant is really trying to run the organization as a going concern. The RFRP is ready, 14 EOI have also been received. All the people are coming and doing site visits hence no coercive measures should be taken against. It is submitted that the RP is ready to pay approx. Rs. 1,00,00,000/-(Rupees One crore) and prayed to pay the balance in instalments.

Mr. Puspal Chakraborty, learned counsel appearing for the WBSEDCL submits that bifurcation has already been done which is evident from their defence note. He undertook not to disconnect the electricity supply provided the payment is done as agreed. Ld. Counsel submitted that they are complying with Section 14 of the Code as well. He further submitted that as per their rules there is no question of allowing any waiver of charges because it is being done as per the Agreement signed by the Company with the Distribution Company, the terms whereof had been settled at the time of entering into the Agreement.

We have heard the parties present through their respective counsel and have gone through the application and the annexures. We have also seen the defence note filed by WBSEDC. We are convinced that the waiver of charges cannot be allowed to the Company undergoing CIRP. It is correct that the surcharge amount levied on non-payment/delayed payments relating to the period prior to the CIRP order, cannot be allowed to be included in the Bills relating to the period after the order of CIRP.

In view of the aforesaid discussion of facts and documents placed on record, we are thus passing the following directions:-

(a) We allow the payment of all the arrears of electricity bills post CIRP order, to be paid in 3 (Three) equal monthly instalments;

(b) All the bills relating to current consumption charges to be raised by the Distribution Company from time to time, shall be paid regularly;

(c) In case there is any default or failure on the part of the Company under CIRP, in making payment of the arrears as directed, the total amount due shall become payable forthwith.

The I.A. (IB) No. 620/KB/2020 in C.P.(IB) No. 1214/KB/2020 is disposed of accordingly.

There shall be no order as to costs.

The Registry is directed to send e-mail copies of the order forthwith to all the parties inclusive of the Counsel of both I.As.