TMI Blog2022 (10) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... d the order dated 13.11.2019 on the ground that he could not appear before the Adjudicating Authority because he was having injury on his hand - If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. The present appeal is allowed only to the extent of setting aside the order dated 18.12.2019 by which the Adjudicating Authority has directed that in view of the same we hereby clarify that the RP shall make the payment of entire amount due with regard to the rent after deducting any amount like GST etc. as per law - Petition disposed off. - Company Appeal ( AT ) ( Ins. ) No. 176 - 178 of 2020 - - - Dated:- 11-10-2022 - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) , [ Mr. Kanthi Narahari ] Member ( Technical ) And [ Dr. Alok Srivastava ] Member ( Technical ) For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has his possession on, belongs to the Applicant herein. Keeping in mind that the Applicant is being deprived from his right of using the land that owns is patently illegal and wrong, therefore cannot be allowed. 15. It is trite law that this tribunal has been provided with vast powers under section 60 (5) of the Code. Therefore, based on the above this bench is of the view that the actions or rather inaction on the part of the Resolution Professional in not taking a decision with respect to the claim of the Applicant is an abuse of the powers given to him under the code and contrary to justice and public policy. His actions are nothing more but an abuse of his dominant position. 16. Furthermore, the arguments raised by the counsel representing Resolution Professional cannot be at all considered since the Applicants has complete right over the possession of his land and his dues, hence we are of the view that since the Resolution Professional seems to have been sitting over the claim of the Applicant for a long time and this cannot be allowed since the same would cause heavy prejudice to the Applicant and defeat the purpose of the Code. 17. Furthermore, it is und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elieve the RP is very much aware that the matter is called upon for hearing, but he has deliberately refused to appear before this bench nor made any endeavour comply with the orders of this bench dated 16.10.2019. In view of the same we once again direct the applicant in this matter to serve one more notice on the RP directing him to be present in person before this bench and explain the reason why the order dated 16.10.2019 could not be complied with or else this bench will be left with no other option but to his secure is presence as per law. Apart from this the impertinent, carelessness indifferent attitude on the part of the RP is highly deplorable and the conduct of RP shall be reported to IBBI for taking or initiating disciplinary proceedings against RP. When the court was about to rise, the RP against whom the order is passed had appeared and sought for recall of order passed by this bench. The recall of order shall be considered on the next date of hearing. List this matter on 25.11.2019. 5. While the aforesaid matter for the alleged non-compliance of the order dated 16.10.2019 was posted for 25.11.2019, the appeal filed by the Appellant against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is hand. Later when the court about to rises he appeared and submitted that the order has to be set-aside and we posted this mater today for further consideration. In the mean-while the order of Hon'ble NCLAT made available to us and it very clear from the order itself is that if there is any possibility of re-negotiation between he owners of the premises and the RP they can do so or else logical conclusion that can be deduced from the order itself is that the premises of the court corporate Debtor must be vacated and handed over to the owner of the premises. It is very clear that the Hon'ble NCLAT had directed the RP to forthwith make the payment from the date of initiation of CIRP. They are very clear that they are not inclined to handover the premises and for past 9 months no payments have been made to them nor the premises have been put to use as claimed by the RP. It seems there is some deliberate and malicious idea is floating in the mind of the RP and his conduct is highly deplorable and unbecoming of a professional at alone as capacity as IRP. The RP is an officer of the officer of the Court and we expect the IRP would help this Bench in achieving the object o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to further trouble (v) The RP was directed to handover the possession of the said premises forthwith and to pay the claim amount as raised within a week from the date of passing of the order. (vi) the application was allowed with costs of Rs. 1,00,000/- to be paid by the RP to the applicant within a week from the date of passing of the order. 9. In the order dated 13.11.2019 passed on the application for seeking issuance of contempt for non-compliance of the order dated 16.10.2019. The Adjudicating Authority has observed that (i) since the order dated 11.11.2019 has not been uploaded on the website, therefore, it is not clear as to whether the RP has been served or not (ii) Counsel for the Appellant informed that the RP is present in the Court and when the matter is called out, the staff of the court found that the RP is sitting outside the court room but refused to come inside and thus, the RP was very much aware of the hearing but deliberately refused to appear before the court despite the order dated 11.11.2019 (iii) a fresh notice was issued to the RP as to explain why the order dated 16.10.2019 was not complied with (iv) observation were made about the impertinent, careless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the CIRP. 14. He has particularly pointed out the observations to be expunged which reads thus: Apart from this the impertinent, carelessness indifferent attitude on the part of the RP is highly deplorable and the conduct of RP shall be reported to IBBI for taking or initiating disciplinary proceedings against RP and at the present situation the RP seems to be have his own personal interest in the whole 15. At the time of preliminary hearing on 29.01.2020, this Tribunal had passed the following orders: Learned Counsel for the Appellant submits that in so far as delivery/ possession of the premises in question is concerned, the same has been complied with and this fact has also been reflected in the order dated 18.12.2019 passed by the learned Adjudicating Authority in M.A. 3558/2019. Learned Counsel for the Appellant submits that the Appellant is aggrieved of the direction in terms of the Impugned Order so far as the same relates to the clarification regarding payment of entire amount claimed by the Operational Creditor. It is submitted that in the light of the order passed by this Appellate Tribunal on 20.11.2019 in Company Appeal (AT) (Ins) No. 1324 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a matter of fact, when the contempt petition was filed by the Respondent for the non-compliance of the direction it contained in the order dated 16.10.2019, the Adjudicating Authority vide its order dated 11.11.2019 directed the Appellant to appear personally on 13.11.2019. The Adjudicating Authority has observed that the Appellant was found by the staff of the court sitting outside the court room but he refused to appear when he was asked for it and when the court was about to rise after passing the remarks about which the prayer has been made for expunction, the Appellant appeared and prayed for recall of the order. It was also observed in the order dated 25.11.2019 that the Appellant has neither handed over the vacant possession of the premises nor has paid any amount from the last 9 months and in this background it was observed that some deliberate and malicious idea is floating in the mind of the RP and his conduct is found highly deplorable and unbecoming of a professional. It was also observed that the IRP is an officer of the court who is expected to help the court in achieving the object of the court i.e. maximization of the asset but at the same time to adhere the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the Appellant had to make the payment of entire amount due with regard to the rent is contrary to the orders passed by this Tribunal on 20.11.2019 when the earlier appeal i.e. CA (AT) (Ins) No. 1324 of 2019 was decided because in that case it was held that para 19 should be read as pay the claim amount as raised by the Applicant for current period after initiation of the CIRP . Even otherwise, it was held in the case of Damodar Valley Corporation Vs. Karthik Alloys Limited, CA (AT) (Ins) No. 13 of 2021 that: We note that DVC has filed its claim of past dues of period prior to initiation of CIRP before the RP, which will be considered by the CoCs and appropriate decision regarding settlement and payment of the claim shall be done in accordance with the resolution plan to be approved by the Adjudicating Authority. In such a situation we do not think that the payment of past dues of the pre-CIRP period have to be paid by the Corporate Debtor when the resolution of the Corporate Debtor is in process. 25. Thus, in view of the aforesaid facts and circumstances, the present appeal is allowed only to the extent of setting aside the order dated 18.12.2019 by which the Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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