NCLT Ahmedabad (01.03.2021) in Dinesh Sugnomal Kanjani Vs. Sunil Kumar Agarwal RP For H M Industrial Pvt Ltd & Anr [IA 390 of 2020 in CP(IB) 81 of 2019 ] held that;
that, as per the provision of Section 18(c) (d) & (g) r.w. Section 20 (2) (a) the IRP is well within his power to appoint Valuer. It is also not in dispute that there is no requirement under the provisions of the Code' to take approval of such appointment by IRP from CoC so far as the present issue is concerned. Further to that as per Section 17 IRP is obliged to manage the affairs of the Corporate debtor. Thus, there is complete authority with IRP to conduct Corporate Insolvency Resolution Process (CIRP) as per the provisions of law and no legal restrictions exist and the post facto approval is also not required in such situation.
It is also noted that even RP is not required to take any approval from the COC in this regard as RP is competent to do so in terms of provisions of Section 23(2) r.w. Section 25(2) (d) of Insolvency & Bankruptcy Code, 2016 for such appointment no approval is required under Section 28 of the Insolvency & Bankruptcy Code, 2016.
Excerpts of the order;
# 1. The Application is filed under Section 60(5) of the Insolvency & Bankruptcy Code, 2016 r.w. Rule 11 of the National Company Law Tribunal Rules, 2016 (hereinafter referred to as “NCLT Rules 2016") seeking for professional fee of Rs. 1,12,776/- along with legal expenses incurred for filing of this application.
# 2. The facts, in brief, are that the corporate debtor was admitted into Corporate Insolvency Resolution Process (CIRP) by this Authority on 07.06.2019 in CP(IB) 81/9/NCLT/AHM/2019. The IRP was appointed who commenced Corporate Insolvency Resolution Process (CIRP). The IRP appointed the Applicant to act as Valuer' vide its letter dated 21.07.2019. The Valuer visited the site and asked IRP to provide necessary details so that the Applicant could ascertain the fair value and liquidation value as per Rules.
# 3. Subsequently, IRP was changed. The RP vide its E-mail dated 24.09.2019 submitted that the Applicant's appointment had not been approved by the CoC and RP required applicant to furnish fresh quotation. The Valuer vide its E-mail dated 01.10.2019 submitted that the report was ready as per the information available and also requested further details for the purpose of submitting the final report. The RP however submitted that difficulty had arisen because of non-approval of his appointment by the CoC, hence, matter could not be settled. The correspondences continued ultimately the Applicant sent legal notice. However, without any results, the present application.
# 4. Learned Counsel appeared for the Applicant and vehemently argued the matter.
# 5. Apart from this narrating the facts. Learned Counsel for the RP and CoC mainly submitted that approval of CoC was not there, hence, this payment is not payable. Both of them supported the stand taken by RP. Our attention was also drawn to the CoC minutes and communication exchanged between the RP and the Applicant.
# 6. We have considered the submissions of all the parties and material available on record. It is not in dispute that the Corporate Insolvency Resolution Process (CIRP) commenced on 07.06.2019 and IRP appointed the Applicant as Valuer on 25.07.2019. It is also not in dispute that, as per the provision of Section 18(c) (d) & (g) r.w. Section 20 (2) (a) the IRP is well within his power to appoint Valuer. It is also not in dispute that there is no requirement under the provisions of the Code' to take approval of such appointment by IRP from CoC so far as the present issue is concerned. Further to that as per Section 17 IRP is obliged to manage the affairs of the Corporate debtor. Thus, there is complete authority with IRP to conduct Corporate Insolvency Resolution Process (CIRP) as per the provisions of law and no legal restrictions exist and the post facto approval is also not required in such situation. It is not in dispute that the Valuer has visited site and also done the ground work. Further, from the perusal of the correspondence, we don't find any limitation being created or caution being given by RP to not to proceed with the work for want of approval of appointment by the CoC.
# 7. It is also noted that even RP is not required to take any approval from the COC in this regard as RP is competent to do so in terms of provisions of Section 23(2) r.w. Section 25(2) (d) of Insolvency & Bankruptcy Code, 2016 for such appointment no approval is required under Section 28 of the Insolvency & Bankruptcy Code, 2016. RP is to act, in this regard as per the norms of IBBI.
8. It is most unfortunate that the professional who under service in respect of the Corporate Debtor under CIRP that professional engaged are not paid in this fashion.
# 9. Accordingly, we direct the RP/COC to make payment to the applicant within seven days from the date of receipt of this order.
# 10. Accordingly, this application is allowed and stands disposed of.
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