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2022 (10) TMI 739 - Tri - Insolvency and BankruptcySeeking direction against Resolution Professional to release the amount due towards Gratuity, Leave Encashment and salary during the CIRP of the corporate debtor - same does not form part of the liquidation estate of the corporate debtor - whether Gratuity is payable when no Gratuity fund is created? - HELD THAT:- In the instant matter, the Resolution Professional cannot be directed to make payment of gratuity to the applicant as there is no gratuity fund created by the corporate debtor. As regards the salary and leave encashment during the period of CIRP, the same pertains to the amounts payable to an employee for services rendered during the CIRP. In this connection, these expenses clearly fall within the definition of insolvency resolution process cost as defined in section 5(13)(c) of the IBC, 2016. The Resolution Professional is directed to make provisions for payment of salary and leave encashment after taking on record the necessary information from the applicant and as per his entitlement and modify the resolution plan to that extent with the approval of CoC. The Resolution Professional is further directed to report the above compliance at the time of consideration of the Resolution Plan - Application allowed. Seeking direction against respondent to pay car rental of Rs. 15,000/- per month/ per car or part thereof up to the date of delivery of the cars to the applicant for using the car for personal purposes - direction to respondent to hand over the custody of the cars belonging to corporate debtor to the Resolution Professional in view of provisions of Section 18 (f) read with Section 23(2) and read with Section 25(2)(a) of IBC, 2016 - HELD THAT:- Under the provisions of the Code, the Resolution Professional is clearly mandated to take possession and to preserve and protect the assets of the corporate debtor. In the present case, the two vehicles should have been in the custody of the Resolution Professional right after the initiation of the CIRP - only with respect to those properties on which the corporate debtor has to “exercise rights in judicial and quasi-judicial proceedings”, the Resolution Professional cannot bring a claim before the NCLT. This situation however, does not apply to the present case as there is no dispute over the ownership of the vehicles in question and hence, the respondent's reliance on the aforementioned decisions of the Hon’ble Supreme Court is clearly misplaced. Therefore, the respondent is directed to handover the possession of above mentioned vehicles to the applicant-resolution professional within 15 days of the date of this order. As regards the payment of car rental upto the date of delivery, it is opined that this issue does not pertain to our jurisdiction as it is not directly related to the insolvency proceedings of the corporate debtor. The aggrieved party is, however, at liberty to move an appropriate forum for redressal of its grievances in accordance with the Law - application allowed. Seeking direction against the respondent to deliver the Refrigeration Vehicle bearing Registration no. PB22G9523 in good condition to the Respondent along with insurance, Registration documents and other tools and tackles - HELD THAT:- The respondent is directed to deliver the Refrigeration Vehicle bearing Registration no. PB22G9523 to the Respondent along with insurance, Registration documents and other tools. As regards the payment of car rental/payments upto the date of delivery we hold that this issue does not pertain to the jurisdiction as it is not directly related to the insolvency proceedings of the corporate debtor. The aggrieved party is, however, at liberty to move an appropriate forum for redressal of its grievances in accordance with the Law. Application allowed.
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