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TMI Blog2021 (3) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... impediment in giving effect to the scheme approved by this Tribunal and in the liquidator in handing over as such to the scheme proponents of the management of the then company in liquidation and the possession of the assets of the said company, viz., Meka Dredging Co. P. Ltd. 3. However, the matter seems to have been kept festering by the liquidator on the premise that the CIRP cost incurred as well as the liquidator's fees and the liquidation expenses had not been paid as the scheme had failed to provide for the same and in the circumstances this Tribunal passed a detailed order based on the application filed by the liquidator in M. A. No. 1140 of 2019, dated May 5, 2020. 4. Vide the said order dated May 5, 2020 several directions were issued as reflected in paragraphs 31 to 35 of the said order, inter alia, directing the scheme proponents to pay the CIRP cost including the resolution professional fees as well as the liquidation cost as required to be quantified by the liquidator and communicated to the scheme proponents along with supporting vouchers and documents so that the payments can be made by the scheme proponents and in case of any dispute as between the liquidator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding over of the reins of the company in liquidation and its management upon approval of the scheme as early as January 10, 2020 as it is the implementing agency which is required to manage the affairs of the company in liquidation and not the liquidator. 9. In the order dated May 5, 2020 it is seen that a board to implement is required to be constituted to which the liquidator was made as an "independent observer" in the Board. 10. Be that as it may, subsequent to the order dated May 5, 2020 in relation to the amounts which are required to be paid in relation to the CIRP including the fees, the scheme proponents represent that they had fully remitted the same to the extent of Rs. 19,86,551 which is not disputed by the liquidator, however, only representing that there has been some delay in remitting the same. 11. In relation to the liquidation cost, it is seen that in view of a disagreement between the liquidator and the scheme proponents, the matter seems to have been taken up with the statutory auditor of the corporate debtor and the said statutory auditor for the company in liquidation as per the averments of the liquidator has quantified a sum of Rs. 3,10,60,514 under vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40 of 2019 in C. A. No. 1026 of 2019 seeking for a direction to the scheme proponents to comply with the order dated January 10, 2020, May 5, 2020 and May 15, 2020 and thereby remit the liquidation cost including liquidator's fees and in case the scheme proponents fails to implement the scheme as sanctioned by this Tribunal to declare the said scheme as null and void and order for liquidation. 15. Consequent to filing of I. A. No. 399 of 2020, further two applications have also been filed in I. A. No. 478 of 2020 and I. A. No. 479 of 2020. In I. A. No. 478 of 2020 directions of this Tribunal are sought for as against respondents Nos. 1 and 2, viz., the scheme proponents to remit the disputed amount of Rs. 1,28,30,265 towards the undisputed portion of the liquidation cost and also to remit a sum of Rs. 1,82,32,249, the disputed liquidation cost including the liquidator fees to the account of the liquidator. Further direction has also been sought from this Tribunal seeking for extension of time in filing of Form No. INC-28 before the respondent/ Registrar of Companies, as impleaded in the said application, viz., I. A. No. 478 of 2020. 16. In relation to I. A. No. 479 of 2020, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is to be seen that only upon occurrence of the event of a disbursal or a receipt the payment becomes due to the liquidator on a percentage basis of such actual receipts and disbursal and not otherwise. Further it has also been directed by the Tribunal vide order dated May 5, 2020 that the liquidator to be an "independent observer" of the board which is a part of the implementing agency of the scheme. In the circumstances, the liquidator's fees is not payable immediately as demanded by the liquidator and is required to be excluded from the statement as contended by the corporate debtor from exhibit G (Colly) annexed along with the auditor's certificate at page Nos. 112 to 115 to the typed set filed in I. A. No. 399 of 2020 by the liquidator. 20. In this connection remaining amounts as reflected in the Table filed along with the exhibit G (Colly) as noted above it is seen that the dispute if at all centres around to quantification of amounts payable under two heads and the rest of the amounts quantified by the auditor are not being disputed. As already detailed in paragraph supra a sum of Rs. 4,21,200 payable as cost for paying "verification of claim" to the liquidator be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id KMEWPL. However, on the part of the scheme proponents, learned counsel for the scheme proponents contended that the amount charged by the KMEWPL is not commensurate with the trade practices prevalent and it is very much on the higher side and in the circumstances there is resistance on the part of the scheme proponents to defray the liquidation cost quantified as payable to the KMEWPL. It is also contended by learned counsel for the scheme proponents that while quantifying the amount in relation to the KMEWPL specifically, which is a substantial sum in relation to forming part of the liquidation cost, an opportunity as contemplated in the order dated May 5, 2020 was not provided by the statutory auditor of the corporate debtor to the scheme proponents to put forth its objections. In this connection, it is pointed out by counsel for the scheme proponents, the table which is filed along with a memo dated June 29, 2020 however, we are not inclined to go into the calculations as sought to be projected by the respective parties. 23. Since the dispute seems to have been narrowed down only to two amounts one in respect of payment to be made to KMEWPL in a sum of Rs. 1,24,09,065 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounts towards liquidator fees as immediately payable. 25. In relation to the agreement for the dredger as entered into between the KMEWPL and liquidator on behalf of the corporate debtor which is represented to be expiring on July 15, 2020 we direct the board of the corporate debtor along with the liquidator who will act as an "independent observer" to make a decision whether to extend the said agreement or to engage some other parties other than the said KMEWPL as per the terms and conditions as may be agreed between the corporate debtor and such other party. The liquidator, in this connection, will act only as an "independent observer" and will not have any vote in relation to the decision to be taken by the corporate debtor in this regard. 26. We order the liquidator to make arrangements to hand over the reins of the management of the corporate debtor, including the possession of assets of the corporate debtor, if not already done within a period of 10 (ten) days from today. No fees shall be chargeable by the liquidator for the same and if not handed over as above, the risk and responsibility and costs shall be to the personal account of the liquidator without any recourse to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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