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TMI Blog2020 (9) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... Affidavit. 2. The lockdown was declared due to pandemic COVID-19 situation and is still continuing, the normal operation of NCLT Kolkata Bench is yet to be resumed. This unnumbered application was listed on today for hearing through video conferencing (VC) since the urgency set out in the application being found satisfactory. Notice from the Registry to the Liquidator as well as to the respondents directing them to submit their written notes of defence, if any has been given in advance. 3. Heard both sides. Perused the documents and the written notes of defence submitted on the side of R1, 3 and 5. 4. This is a unique application filed by a liquidator appointed at the choice of the CoC as against the CoC claiming that despite repeated demand the CIRP cost and liquidation cost, inclusive of his fees has not been paid and hence come before the Adjudication Authority (AA) to issue directions to the members of the CoC to pay their respective shares immediately. 5. Vide order dated 04/10/2019 passed in CA(IB) No. 1033/KB/2019, an Order of Liquidation was passed appointing Mr. Yogesh Gupta as the Liquidator. The said order dated 04/10/2019 was amended vide Corrigendum Order dated 18/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the voting share, three of the Respondents have duly cleared more than their shares. Subsequently they filed Application under Section 33 before NCLT for liquidation. Now this liquidation order was passed on 4th October, 2019. Dispute is for the interim period from 13th June, 2019 to 3rd October, 2019. The IRP has not got the payment. For this interim period IRP has not submitted any budget or statement of account. So the question of payment does not come up for consideration before the CoC. On 2nd March, 2020, the Resolution Professional, now Liquidator, stated that the cost of CIRP stands at Rs. 37,69,000/- and a difference of Rs. 3 lacs was there between the past estimate and the estimate of Rs. 37,69,000/-. Once the Liquidator clarifies this difference, the Respondents will pay the amount. It is to be mutually settled. 8. The Ld. Counsel Ms. Anindita Das, IFCI/R4 submitted that the CIRP has commenced on 03-08-2018. Thereafter, on formation of Committee of Creditors, there was a dispute arisen by the other Financial Creditors of the Committee regarding inclusion of IFCI in the Committee. Bank of Baroda has also filed an application to that effect before this Adjudicating Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected to the inclusion of R4 in the CoC even if it is an unsecured creditor. However, dispute as to whether the R4 is a financial creditor or not has not been settled by the CoC and the said dispute is now referred to the AA and two IAs in that regard are pending. According to her without settling the said dispute, R4 may not be compelled to pay its part of share towards the Cost of CIRP and liquidation. I found some merit in her submission upon a reference to the copy of minutes she brought to my notice. Item No. 5 in the minutes of the 4th CoC meeting is reproduced here under; It add strength to the submission on the side of R4. Item No. 5: ... ... ... ... ... ... The Chairperson expressed that following is the concluding opinion of M/s. Khaitan & Co. "Although the instrument subscribed by IFCI Ltd. is convertible debentures, which not a debt instrument, considering the aforesaid, it is not free from doubt as to whether IFCI Ltd. will be regarded a financial creditor or not within the meaning of Section 5(7) of IBC. It may be advisable to seek suitable clarification from NCLT in this regard." In view of the said opinion the chairperson suggested that it will be appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the debenture holder is a creditor or a lender of the CD company. Though it is certain that convertible debentures are long term debt instruments issued by a company that can be converted into equity shares of the company on a future date, since the dispute as to whether it is a debt instrument or not is pending for consideration before the AA, I am not deciding the said dispute here in this application. However being satisfied that IFCI's inclusion as a member in the CoC is disputed by the remaining financial creditors, it appears to me that IFCI cannot be compelled to contribute its part of share towards the CIRP and Liquidation cost. Part payment voluntarily made by the IFCI does not bar it from disputing its liability to pay the amount as demanded by the liquidator. However, to have a fare and just consideration of the objections now raised by the IFCI it appears to me that, that part of the amount to be contributed by the IFCI in accordance of the voting share already determined, by the RP is to be deposited in an interest bearing account of the CD in the name of the liquidator so as to realise the amount by him in case the inclusion of the R4 is found legal and proper. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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