NCLT Kolkata (2024.01.07) in Radico Khaitan Limited Vs Mr. Ajay Kumar Agarwal & Ors. [I.A (IB) NO. 978/KB/2024 IN C.P.(IB) NO. 74/KB/2020 ] held that;
That the concerned CoC members are liable to contribute towards the CIRP expenses equally.
A committee formed under this Regulation (Regulation 16) and its members (operational creditors) shall have the same rights, powers, duties and obligations as a committee comprising financial creditors and its members, as the case may be.
Excerpts of the Order;
# 1. The Court congregated through hybrid mode.
# 2. The Ld. Counsel of both the parties were heard.
# 3. The instant application is being filed by Radico Khaitan Limited, hereinafter referred to as the ‘Applicant’ under Section 60(5) of the Insolvency and Bankruptcy Code, 2016, for brevity, ‘I&B Code’ to seek the following reliefs:
A. Direct the Respondent No. 2 and 3 to contribute toward the CIRP expenses in proportion to their voting share; and
B. Direct the Respondent No. 1 to initiate appropriate proceedings for the recovery of the concerned proportionate CIRP expenses/cost/fee from the Respondent No. 2 and 3 and consequently set aside the finding/observation that his fee is attributable solely to the Applicant; and
C. Direct Respondent No. 1 to seek his fees/CIRP costs in a reasonable manner and strictly as per the CIRP Regulations and the Code of Conduct; and
D. Restrain Respondent no. 2 and Respondent no. 3 from withdrawing their claims before Respondent no. 1 without paying their requisite share of CIRP costs; and/or
E. Any other order that this Hon'ble Tribunal may deem appropriate in the facts and circumstances of the case;
# 4. SUBMISSIONS MADE BY THE LD. COUNSEL ON BEHALF OF THE APPLICANT
4.1 It is submitted that the Respondent No. 1 in CoC meetings did not justify and substantiate the exorbitant bill of Rs. 35.32 Lakh. Further, the Respondent No. 1 proceeded to raise bills of Rs. 1,25,000/- per month without there being any approval and justification.
4.2 It is submitted that the conduct of the Respondent No. 1 is not in alignment with law and is so unsatisfactory that it is compelling the creditors/claimant to withdraw their claim.
4.3 It is submitted that the exorbitant CIRP cost and monthly fee of Rs. 1,25,000/- from 01.04.2022 to 05.02.2024 is purely illusionary and is untenable in the eyes of law. If the CIRP/liquidation is allowed to proceed in this manner it will defeat the claim of the Applicant and will result in adversely affecting the Applicant which will be completely contrary to the object of the IBC 2016, equity and justice.
4.4 It is submitted that since no claim has been received from any financial creditor, hence the CoC is constituted with the operational creditors only.
4.5 That both the Respondents, on one hand have duly filed their claims with RP and on the other hand do not want to contribute their share towards CIRP cost, being members of the CoC already incurred by RP and approved by the CoC. The Respondents have pleaded that the amount of CIRP cost be recovered from the assets of the CD post liquidation.
4.6 Further it is submitted that the Hon'ble Tribunal has already fixed the expenses/fee of Rs. 3,00,000/- to be paid by the Applicant and directed the Respondent No. 1 to identify the prospective resolution applicant within 105 days which the Respondent No. 1 miserably failed. Pertinently, the conduct of the Respondent No.1 is so dubious and unsatisfactory that most of the Claimant/creditors are at the verge of withdrawing their claim.
4.7 The Hon’ble NCLAT in its decision in Kotak Resources v. Dharmendra Dhelaria & Ors.in Company Appeal (AT) (Insolvency) No. 569 of 2020 makes it aptly clear that the concerned CoC members are liable to contribute towards the CIRP expenses equally. Further, as per Regulation 16 of IBC Regulation, 2016, a Committee formed with Operational Creditors only provides as below:
"16. Committee with only operational creditors.
(4) A committee formed under this Regulation and its members shall have the same rights, powers, duties and obligations as a committee comprising financial creditors and its members, as the case may be."
Thus, it is patently clear that all the Operational creditors in this case Respondent No. 2 and 3 have same duties as of committee comprising of financial creditors and its members.
4.8 Further it is submitted that there is no legal obligation for the Applicant to bear the observed or claimed or alleged unreasonable, unjustified, exorbitant expenses of Rs. 32,45,000/- for period of 01.04.2022 to 05.02.2024 attributed to Applicant under Regulation 33 of IBC Regulation, 2016.
4.9 That Respondent No. 1 failed to take control and custody of assets as per Section 18(1), Section 25(2) of IBC 2016 and have categorically transgressed from its path by acting contrary to the above. Pertinently, Respondent No. 1 has acted in violation of Regulation 16 of IBC Rules, 2016 by ignoring the existence of secured financial debt in the books of accounts of the Corporate Debtor .
# 5. We have heard the Ld. Counsels of both the parties and perused the documents on record,
ANALYSIS AND FINDINGS
# 6. We find that the main issue pertaining to this application relates to the payment of the CIRP costs.
# 7. We have already decide to allow the withdrawal of Respondent no. 2 i.e, Mahima LifeSciences Private Limited in I.A 1068/KB/2024 from the entire CIRP Process subject to the payment of the CIRP expenses incurred upto date within 7 days from the date of this order.
# 8. In the aforesaid backdrop, we also direct Respondent No. 3 to contribute towards the CIRP expenses in proportion to their voting share within 7 days from the date of this order.
# 9. Hence, the I.A. (IB) NO. 978/KB/2024 stands partly allowed and disposed of.
# 10. Urgent Certified copies of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.
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