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TMI Blog2019 (4) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... Registration No. IBBI/IPA-002/IP-N00360/2017-18/11055 as Resolution Professional (RP) in the place of Mr. S. Gopalakrishnan, Interim Resolution Professional (IRP) who had conducted the first COC meeting this matter is taken up for hearing. The Application is filed on 19.12.2018 without mentioning any reasons for change of IRP. But the grounds on which the IRP Mr. S Gopalakrishnan was sought to be changed is furnished by the Axis Bank in the form of an affidavit dated 29.01.2019 even without affording an opportunity to the RP to give his explanation. The main reasons as contained in the affidavit that the IRP has failed to perform and discharge the duties as mandated by the relevant provisions of law and Regulations which inter alia as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he licensee and the same is completely detrimental to interest of the COC during Corporate Insolvency Resolution Period. He is ideally supposed to collect the same and keep the same into some FDR or highest interest bearing A/c on a regular basis. A copy of the said letter dated 13.10.2018, is hereto annexed and marked as Annexure IV. e. He has been claiming exorbitant fees to act as an IRP over and above the permitted by the COC in its meetings. f. He similarly quoted the exorbitant professional fess of third party professional like Forensic Audit Agency, Lawyers, valuers etc. which is over and above the limit approved by the COC in its meeting. Even services of such professional were availed without seeking any approval from the COC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... changing the IRP. The subsequent affidavit which is filed nearly after a month makes allegations against the IRP without affording him an opportunity to offer explanation for the allegations made against him. Even though the law definitely is on an advantageous position in favour of the COC, the discretion vested with the Adjudicating Authority must also be taken into consideration before a final call is taken. 3. In the course of proceedings, this Bench had noticed certain serious fraudulent activities committed by the Directors of the Corporate Debtor because the Applicant in the CP No. (IB) 587(MB)/2018 Ms. Rama Subramaniam had worked in the said Organization and had submitted on various occasions that there is a fraudulent background ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings in Camera and one Mr. Ray, Vice President of the Axis Bank along with their Counsel and the IRP Mr. S Gopalakrishnan and his Counsel were present. We brought it to the notice of Mr. Ray of Axis Bank, the necessity and rational behind continuing Mr. S. Gopalakrishnan, IRP as RP until the proceedings before this Forum attains the finality. But the said Vice President of the Axis Bank was vehement and somehow wanted to change the IRP without any valid or tenable reasons particularly when this Bench tried its best convince the Vice President of the Axis Bank. The point here is, are we really required/empowered to take such a step to convince the COC to retain or change the IRP or the RP. Section 22 (3)(b) referred as below:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought for nor was neither any opportunity given nor a rational decision taken by the Bank which is 100% COC. Its more than the monitory things, the information gathered by the IRP against the fraudulent Corporate Debtor which matters most for continuing Mr S. Gopalakrishnan as RP in the present case in as much as a new person in his place may not be in a position to pursue the objective of bringing out the fraudulent acts of the Corporate Debtor to the notice of the public authorities. We have carefully gone through the facts and circumstances of this case and we found Mr. S. Gopalakrishnan is performing his job diligently and had made lot of efforts to go very deep into the matter and was willing to take appropriate steps to take the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Corporate Debtor smacks of fraud and illegality. Having taken note of the background of this case we are of the considered view that the decision of the COC for the change of IRP, Mr. S Gopalakrishnan and appointing Mr. Santanu T Ray in his place is not tenable and the COC has no absolute power to change the IRP / RP at their whims and fancies without any valid or tenable reasons. The change of RP must be rational/tenable/reasonable and not at the whims and fancies of the COC. 6. Hence, in view of the above, the Misc. Application No. 1626/2018 for the change of IRP and to appoint Mr. Santanu T Ray as RP is rejected as the Bank consisting of 100% COC had thoroughly failed to put forth any tenable or valid or genuine reasons for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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