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2020 (9) TMI 999 - Tri - Insolvency and BankruptcyDirection for payment of outstanding amount of CIRP expenses and the contribution towards the liquidation cost - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- According to the Ld. Counsel for R4 it is the CoC members objected to the inclusion of R4 in the CoC even if it is an unsecured creditor. However, dispute as to whether the R4 is a financial creditor or not has not been settled by the CoC and the said dispute is now referred to the AA and two IAs in that regard are pending. According to her without settling the said dispute, R4 may not be compelled to pay its part of share towards the Cost of CIRP and liquidation. I found some merit in her submission upon a reference to the copy of minutes she brought to my notice. IFCI has already been included as one of the Financial Creditors at the instances of IRP after verifying its claim. According to the liquidator IFCI is a financial creditor since the debenture holder is a creditor or a lender of the CD company. Though it is certain that convertible debentures are long term debt instruments issued by a company that can be converted into equity shares of the company on a future date, since the dispute as to whether it is a debt instrument or not is pending for consideration before the AA, I am not deciding the said dispute here in this application. However being satisfied that IFCI's inclusion as a member in the CoC is disputed by the remaining financial creditors, it appears to me that IFCI cannot be compelled to contribute its part of share towards the CIRP and Liquidation cost. Part payment voluntarily made by the IFCI does not bar it from disputing its liability to pay the amount as demanded by the liquidator. However, to have a fare and just consideration of the objections now raised by the IFCI it appears to me that, that part of the amount to be contributed by the IFCI in accordance of the voting share already determined, by the RP is to be deposited in an interest bearing account of the CD in the name of the liquidator so as to realise the amount by him in case the inclusion of the R4 is found legal and proper. If found it is to be excluded, the amount in deposit is to be refunded to it. Application disposed off.
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