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2022 (8) TMI 107 - Insolvency & Bankruptcy
Fixing the fee of IRP - direction to Appellant to file her ‘Claim’ before the Liquidator as the ‘Corporate Debtor’ was under Liquidation, is correct or not - fee of an RP falls under the definition of a ‘Claim’ as defined under the Code or not - Whether the fee of a Resolution Professional is required to be fixed by CoC, failing which such decisions/determination is to be made by the Adjudicating Authority under the provisions of Section 60(5) of the Code read with Regulation 33(2) of the CIRP Regulation to fix the fees as payable to the RP?
HELD THAT:- This Tribunal is of the considered view that the question which mainly arises in this Appeal is whether the Liquidator is having the jurisdiction to decide the fee of the RP as the CoC is no longer in existence. By virtue of Section 5(13)(e) of the Code, the fees and expenses incurred by the Appellant comes under the ambit of Insolvency Resolution Process Cost and therefore in the instant matter the Liquidator cannot adjudicate upon the Insolvency Resolution Process Cost. Regulation 34 of the IBBI Regulations specifies that the CoC shall fix the expenses which are incurred by the Resolution Professional. The word ‘expenses’ includes the fee to be paid to the Resolution Professional. Viewed from any angle, the fees of an RP cannot be considered to be a ‘Claim’ as defined under Section 3(6) of the Code. The Liquidator can only verify and adjudicate the ‘Claims’ as defined under the Code. Since the amount of fees payable to an RP is not a ‘Claim’, the same cannot be determined or verified by Liquidator.
The Hon’ble Supreme Court in ‘Alok Kaushik’ [2021 (3) TMI 1242 - SUPREME COURT] in para 20 has clearly distinguished the fees to be paid to a professional from the ‘penalty which can be imposed if a disciplinary committee is satisfied that sufficient cause exists’. The Hon’ble Apex Court has observed that the availability of a grievance redressal mechanism under the Code against an Insolvency professional does not divest the Adjudicating Authority of its jurisdiction under Section 60(5)(e) of the Code to consider the amount payable to the Appellant - the contention of the Respondent that there is a nexus between the IBBI Report and the fees to be paid to the RP, is untenable.
The Adjudicating Authority shall take into consideration the facts of the attendant case together with the orders of this Tribunal, by which Order, the RP had continued performing her duties and decide the fees as expeditiously as practicable but not later than 4 weeks from the date of this Order and shall proceed in accordance with law - thus, it is Adjudicating Authority which has to decide fees in the absence of a CoC and the RP cannot be directed to prefer a ‘Claim’ before the Liquidator.
The matter is remanded back to the Learned Adjudicating Authority - Appeal allowed by way of remand.