TMI Blog2019 (11) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... cularly, in relation to the financial statements for the year ended 31.03.2017 as well as for the year ended 31.03.2018 within a period of three weeks from today. It is evident from the averments made in the Application and as well as during the course of submissions of the Applicant and R2 and R4 as R1 did not choose to appear at the time of oral submissions, that the IRP/RP has grossly failed in his duty to maintain even the 'essential services' of the Corporate Debtor, which is required to be taken note of by the Insolvency and Bankruptcy Board of India (IBBI), being the Regulator and a suitable action be initiated against the IRP/RP viz., Karthigeyan Srinivasan, after due enquiry, as contemplated under the Scheme of the I B Code, 2016 and the Regulations framed there under by IBBI in relation to conduct of IRP/RP of Corporate Persons during the CIR Process as the Regulator is the person which can take the action for the omissions and commissions purported to have been committed by the IRP/RP as evident in the present instance for which purpose the copy of this Order be forwarded by the Registry to IBBI. The Applicant viz., Liquidator is directed to file the report ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded 31.03.2018. However, in view of the same not being handed over by the erstwhile IRP/RP appointed by this Authority, the Liquidator was not in a position to verify the claims received from the creditors. 3. A repeated refrain was taken by the IRP/RP as evident from the averments in the above Application that in view of the fact that the matter was pending before the Hon'ble NCLAT as well as before the Hon'ble Supreme Court as a status quo order was in vogue till 21.03.2018, not much activity was able to be carried out in relation to the CIR Process of the Corporate Debtor and subsequent to the removal of the status quo Order, though IRP/RP was able to perform certain functions, however, in view of the fact that all the records pertaining to the Corporate Debtor were maintained in a cloud storage and due to nonpayment of fees for the 'cloud storage' to the service provider, he was not able to retrieve the electronic data, and in the circumstance, no details were available to be provided on the part of the IRP/RP to the Liquidator. Even though, the Applicant viz., the Liquidator was subsequently ready to pay the fees for the retrieval from the 'cloud stora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the facts as contained in the Application and sought to impress upon this Tribunal that he is not in a position to perform the duties as cast upon him under the provisions of the I B Code, 2016 read with all attendant Rules and Regulations, in view of lack of particulars being made available to him by the Respondents including the one impleaded under the directions of this Tribunal viz., M/s. Amazon Web Services. 6. On the part of the 2nd Respondent, who appeared in person, it was vehemently contended that he has been fully co-operating with both the IRP/RP since the commencement of CIR Process as well as the Liquidator throughout. It is also brought to the notice of this Authority by the 2nd Respondent appearing in person that soon after the initiation of CIR Process, he approached the IRP/RP to take note of the fact that all the information pertaining to the Corporate Debtor are available in the 'cloud storage' and that the payment of fees needs to be effected as the 'cloud storage' is maintained on commercial basis, and in case the payment of the same was not made, there is every possibility that M/s. Amazon Web Services, being 4th Respondent, will suspend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination of the agreement as entered into between the Corporate Debtor and M/s. Amazon Web Services which has resulted in the deletion of the information stored in the 'cloud storage' of the Corporate Debtor with it. 8. The Learned Counsel for the Respondent No.4 in this regard has also pointed out the AWS Customer Agreement in the typed set of documents filed along with the pleadings of the Respondent No.2, and more particularly has referred to the Clause 4.3, which is extracted below for ready reference:- 4.3 Your Security and Backup. You are responsible for properly configuring and using the Service Offerings and otherwise taking appropriate action to secure, protect and backup your accounts and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Content from unauthorised access and routinely archiving Your Content. 9. We have carefully considered the rival submissions as well as the pleadings and the documents as filed by the respective parties before this Tribunal. From the e-mail correspondences, as stated to have been transpired and which has also been enclosed along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it claims to be a sum of ₹ 65,000, the course which should have been adopted on the part of M/s. Amazon Web Services is to have filed the claim as an 'Operational Creditor' of an 'Operational Debt' before the IRP/RP, upon publication effected by the IRP calling for the claims from the creditors of the Corporate Debtor, and further, in relation to the amount which may be due during the period of CIR Process for providing essential services, the payments could have been sought for on a current basis from IRP/RP, and thus, we do not find any justification for the said M/s. Amazon Web Services, who have simply gone on to terminate the agreement relating to the maintenance of 'cloud storage' of the Corporate Debtor, that too, without notice, or for the suspension of the services and taking it to the extreme end of cancelling or erasing the storage in entirety being the valuable data and information of the Corporate Debtor. When a question was posed specifically by one of us to the Counsel for the Respondent No.4 as to why a drastic action should not be initiated against the 4th Respondent for suspension, termination and erasure of the data and information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or otherwise, maintained on paper or in electronic form It is to be noted that recourse can be taken to the provisions of Companies Act, 2013 in case the term is not defined under I B Code, 2016 by virtue of Section 3(37) of the said Code. Definition of 'document' as extracted above can be either in paper or in electronic form. Thus, taking into consideration the above position of law as well as the agreement as entered into between the Corporate Debtor and the 4th Respondent, 2nd and 3rd Respondents are required to produce the documents and books of accounts as sought for by the Liquidator and cannot point fingers at the 1st or 4th Respondent. Similarly, the IRP/RP and the 4th Respondent, as already dealt with in the earlier paragraphs, in view of a duty cast upon them during the moratorium period, similarly cannot also wash their hands off in relation to the documents and records stored by way of data in electronic form including the books of accounts as alleged to have been maintained in 'cloud storage' being an information technology services falling under the category of 'essential services' is required to maintain the same without termination, eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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