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2021 (9) TMI 275 - Tri - Insolvency and BankruptcyRefund of amount illegally retained - amounts were given during moratorium period for supply of goods/components - siphoning off proceeds of Corporate Debtor in contravention of Moratorium - contravention of Section 14, 31 and Section 74 of IBC - section 60(5) of the Insolvency & Bankruptcy Code, 2016 - Maintainability of application under Rule 11 of the NCLT Rules, 2016 or under Section 60(5) of IBC, 2016 - HELD THAT:- The provisions of Section 60(5) (a) & (b) of IBC, 2016 are not applicable. Section 60(5)(c) of IBC, 2016 states that any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code shall be considered by the Adjudicating Authority - Admittedly, in the present matter, the Resolution Plan has already been approved. This period of 180 days may be extended under Section 12 of IBC, 2016 and in terms of the amended provision of Section 12 of IBC, 2016, the total period of insolvency resolution process is 330 days, which means that the period so referred to in Section 5(14) of IBC, 2016 is subject to the extension made under Section 12 of IBC, 2016 or when the Resolution Plan is approved by the Adjudicating Authority - in the case in hand, the Resolution Plan has already been approved by the Adjudicating Authority on 02.04.2019. Therefore, no insolvency proceeding is pending before the Adjudicating Authority. Maintainability of application under Rule 11 of NCLT Rules, 2016 - HELD THAT:- During the pendency of any matter before the Tribunal, when there is no specific provision under the Act/Code is given only then the Tribunal may pass order by exercise of its power under Rule 11 of the National Company Law Tribunal Rules to deal with such situation. But herein the case in hand, no such matter is pending after the approval of Resolution Plan by the Adjudicating Authority, therefore, a separate application to deal with a new issue cannot be entertained under Rule 11 of the NCLT Rules, 2016. As per Section 25(1) of IBC, it is the first and foremost duty of the IRP/RP to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. And in order to protect and preserve the assets of the corporate debtor, a separate provision has been made under Section 14(2) of IBC and Sub Section 2A of Section 14 is added w.e.f. 28.12.2019, as per which the supply of essential goods or services of the Corporate Debtor shall not be terminated, suspended or interrupted during the period of moratorium. Even before the insertion of Sub Section 14(2A) there was a provision under Section 14(2) of IBC, which authorised the RP to permit anyone to continue the supply of essential goods or services which is necessary to keep the Corporate Debtor as a going concern. The goods/components were supplied by the respondents on the request of the RP during the moratorium period and the RP has acted as per the provision contained under Section 14(2) of the IBC 2016 - there is no contravention of provisions contained under Section 14 of IBC. Application dismissed.
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