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2022 (5) TMI 21 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHILiquidation process costs - expenses for preventing any damage due to possible collision between the vessels - responsibility was upon the liquidator - expenses incurred should be part of the overall liquidation process costs or not - HELD THAT:- It is noted that the liquidator, who is responsible for preservation and protection of the assets in the liquidation estate, exchanged email communications starting with an e-mail dated 2.10.2019 (emails attached at pp.45-48 of the appeal paperbook) to both Appellant/Hero Fincorp and United Bank of India, under whose charges the vessels Tag 22 and Tag 6 were held respectively, that the two vessels have come close to each other and may come into contact leading to potential damage, whereupon vide e-mail dated 3.10.2019 (attached at pg. 45 of the appeal paperbook) the Appellant communicated its unreserved willingness to contribute funding needed for securing Tag 22 and also requested the liquidator to undertake the securing operation - it is clear that proportionate CIRP cost and payment of expenses incurred by the liquidator in securing m.v. Tag-22 has been ordered by the Adjudicating Authority which has to be paid by the Appellant. The actions relating to protection and preservation of two vessels Tag 22 and Tag 6 were taken by the liquidator during the period 3rd to 5th October, 2019, as is clear from the e-mails exchanged between the charge holders of two vessels, namely United Bank of India and Hero Fincorp and the liquidator (emails attached at pp. 45-48 of appeal paperbook) and also from the tax invoice submitted by K.E. Salvage (attached at pg. 49 of the appeal paperbook). Therefore, the action relating to securing the two vessels was taken much after the Appellant had obtained order from the Bombay High Court under its Admiralty Jurisdiction on 18.3.2019 and 23.4.2019 and therefore the vessel Tag 22 had become the ‘asset’ of the Appellant. Thus, it is clear the any action taken thereafter for securing the vessel Tag 22 was undertaken by the liquidator with the explicit consent of the Appellant/Hero Fincorp in pursuance of Hero Fincorp’s interest in protecting and preserving its asset Tag 22, and the action being taken for liquidation of the Corporate Debtor is under the provisions of the IBC - Regulations 16 and 18 of the Liquidation Process Regulations enjoin upon the creditors to file their claim before the liquidator in a prescribed time period. In the present case, the financial creditor Hero Fincorp Limited did not file its claim before the liquidator ostensibly because it wanted to realise its security interest in the vessel Tag 22. The liquidator took action after receiving consent from the Appellant for preservation and protection of vessel Tag 22 during 3rd – 5th October, 2019 much after the Appellant had invoked Admiralty Jurisdiction of Hon’ble Bombay High Court to realise its security charge in vessel Tag 22. Subsequently, when invoice received from K.E. Salvage Company was sent for payment to the Appellant by the liquidator, the Appellant went for litigation against making payment of said invoice. The Appellant shall pay a cost of Rs. One Lakh as litigation expenses to the liquidator, which shall go into the liquidation estate. Both, the proportional share of the Appellant in securing the two vessels Tag 22 and Tag 6 and the litigation cost shall be paid by the Appellant within 15 days of this judgment - appeal dismissed.
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