9911796707
TMI Blog2020 (9) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated that vide order dated 23.01.2020 of this Tribunal, the Corporate Debtor M/s. GUJARAT METALLIC COAL & COKE LIMITED was ordered to undergo Corporate Insolvency Resolution Process by declaring moratorium in respect of the Corporate Debtor for the purposes referred to in Section 14 of the Insolvency and Bankruptcy Code, 2016 and Mr. Kanchan Dutta was appointed as the Interim Resolution Professional to conduct the process of CIRP. It is stated that the corporate debtor is a BSE listed company involved in the business of trading of coal and coke. Due to the market scenario and continuous loss in the market the corporate debtor has stopped its functioning since December, 2019 and as such there is no employee in the company's payroll. At present there are three directors in the company. Mr. SAJJAN KUMAR TAILOR, the Applicant is the Managing Director and looking after the day to day affairs and other compliance of the corporate debtor. Since the commencement of the CIRP, the Applicant is stated to have extended his full cooperation to complete the CIRP process successfully. They were given full access to the statutory records, accounts and accounting software, files and corresp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alculation of CIRP period, the respondent is pressurizing the applicant to take the risk of his life by opening office and providing documents to him for completion of CIRP, though the applicant has assured the respondent of his co-operation on resumption of normalcy. 4. It is stated that this A/A had ordered CIRP against the CD on 23rd January, 2020, and the IBBI inserted Regulation 40C, whereby "the period of lockdown imposed by the Central Government in the wake of COVID 19 outbreak shall not be counted for the purposes of the time-line for any activity that could not be completed due to such lockdown, in relation to a corporate insolvency resolution process". Notice of 2nd COC meeting was given on 22.05.2020 for the meeting to be held on 26.05.2020, and Revised notice received on 25.5.2020 for 2nd COC meeting to be held on 28.05.2020. 5. It is also stated that the central government has also considered this situation as pandemic and announced lock down with further extension. Vide notification dated 29th March 2020, the IBBI has inserted Regulation 40C, whereby the period of lockdown imposed by the Central Government in the wake of COVID 19 outbreak shall not be counted for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging Director and Chief Financial Officer of a listed company having assets around Rs. 80 Crores. The Corporate Debtor has mainly 2 sets of assets, one being an immovable flat in Jaipur, Rajasthan and the other being investments in other companies (3 such investments). The major one of such investments is in shares to the tune of Rs. 59.79 crores in an Australian Company by the name of Happy Mining Pvt. Ltd. Incidentally, the Applicant was also the Sole Director of Happy Mining Pvt. Limited, Australia till 25th March 2019, as is evident from the Australian Securities and Investment Commissions database. He should be in possession of all the details of the operations of Happy Mining Pvt. Limited which he is intentionally/deliberately not sharing to create hurdles in the CIRP. It appears that this Australian Company owns nearly 219 square kilometers of mining area and till 2018, the Corporate Debtor was the parent body of this Australian Company. From the news-paper articles it appears that the Corporate Debtor only had floated the Australian Company. It is reiterated that the investment in this instant Australian company if valued properly and accurately, will ultimately lead to sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in custody of the Corporate Debtor and the Applicant has represented that the same is lost. The RP has been since January 2020 requesting the Applicant to hand over the control and custody of the asset. However only on 14th March, 2020 the Applicant informed that the Original title deed of the property is lost from his custody. The RP then requested the Applicant to lodge an FIR to that effect and give necessary declarations but the Applicant has failed to do so in the last 3 months time also. 9. The RP further submits that it is absolutely unbelievable that in a listed company, the Chairman and Managing Director is the only person for doing everything, and he too has been making execuses to avoid the directions of the RP. When the RP has sought for access to the information, the Applicant has stated that all the information is kept in the office and he cannot step out of home in these trying times to give access of the information to the RP. So the RP questions, that does that CMD himself of a listed company owning Rs. 80 Crores of crores of assets comes to office and raises the shutter himself and operates in the office and thereafter leaves the office by bringing down the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lick and his real intention is to avoid the meetings so as to create hurdles in the CIRP and delay the CIRP. It is submitted that the RP followed the law and correctly did not permit the representative of a director alone without being accompanied by the Director in accordance with the law. The RP states that directors are called in the meeting to discuss about the affairs of the CD, to give any details that COC wants and not just comment on the agenda of the meeting that was circulated. 12. It is further submitted that Respondent No. 1 till beginning of June 2020 stated that the Registered Office is situated in the containment zone and everything is closed and hence he cannot give access to the office. After the RP visited the building on 5th June 2020 and saw that everything is open, cars are parked, business is on full fledged in other offices and sent the report to the CD supported with pictures, the Respondent No. 1 changed his tactics of not giving access to the office of the CD and resorted to his health ground and how he cannot step out of the home. The RP states that the real intention of the Respondent No. 1 is not to give access to the RP to the office of the CD. The RP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 19, quoted above, are very clear and he should have thought twice while openly challenging and disobeying the directions of the RP. RP has been appointed under the provisions of the Code and it is very clearly mandated that the applicant/CMD SHALL extend all assistance and co-operation to the RP, AS MAY BE REQUIRED BY HIM in managing the affairs of the corporate debtor. 15. Similarly, one must understand that Section 25 of the Code, which enumerates the Duties of resolution professional. Section 25(2)(a) provides as under:- "25. Duties of resolution professional. (1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions, namely:-(a) take immediate custody and control of all the assets of the corporate debtor, including the business records of the corporate debtors." 16. Section 25 assigns the IRP/RP with various statutory duties in connection with the business and assets of the Corporate Debtor, including TAKING IMMEDIATE CUSTODY AND C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing heard the applicant through his counsel, and the RP, we are of the considered view that none of the contentions made in the application filed by the applicant/CMD could convince us and appear to have been made just to avoid the RP, and gain more and more time. We cannot allow continuation or persistence of such an attitude on the part of the applicant. We dismiss the application of the applicant/CMD of the Corporate Debtor upon the following orders:- (i) The application filed by Mr. Sajjan Kumar Tailor, the Managing Director of Suspended Board of Directors of the CD is dismissed with a cost of Rs. 50,000/- (Rupees Fifty Thousand Only) as costs, which shall be deposited to the account of the CD by the applicant/CMD of the Corporate Debtor within 15 days from receipt of this order. (ii) The application filed by the RP is allowed by directing the CMD, Mr. Sajjan Kumar Tailor, and all other directors and personnel of the Corporate Debtor to immediately provide the information/documents as described in Schedule 1 of the application preferably with in 15 days from the date of receipt of the order. (iii) The CMD, Mr. Sajjan Kumar Tailor, and all other directors and personnel of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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