TMI Blog2021 (6) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on 14.03.2019, the Registry of this Tribunal had also duly communicated the same to e-mail id of the Applicant on 19.03.2019. There is no scope for the invocation of the maxim as sought to be relied on, as the facts herein only points out to the absolute negligence on the part of the Applicant to thoroughly verify his e-mail which had resulted in the 'dereliction of duty' on his part as enjoined by the provisions of IBC, 2016. Appeal dismissed. - IA/2/2021 in CP/737/IB/2018 and IA/8/2021 in CP/737/IB/2018 - - - Dated:- 3-5-2021 - R. Varadharajan, Member (J) And Anil Kumar B., Member (T) For the Appellant : Shubharanjani, Advocate and Party-in-Person ORDER R. Varadharajan, Member (J) 1. This is a classic case whereby the conduct of the Operational Creditor has subverted the entire Corporate Insolvency Resolution Process (CIRP) initiated by this Tribunal against the Corporate Debtor as the facts hereunder will vouch for the same. 2. The Petitioner/Operational Creditor had approached this Tribunal in CP/737/IB/2018 seeking for the initiation of CIRP in relation to the Corporate Debtor for default committed by the Corporate Debtor in the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f passing the Order on 14.03.2019, from the Operational Creditor. 6. In relation to the e-mail sent on 19.03.2019 by the Registry of this Tribunal, it is alleged that the same had got itself lodged in the SPAM Folder of Mail Box in the e-mail of the Applicant and in the circumstances the IRP effectively was not aware of his appointment and hence the CIRP period of 275 Days is required to be excluded commencing from 14.03.2019 until 13.12.2019 from the CIRP of the Corporate Debtor initiated by this Tribunal. However, this Tribunal vide a detailed Order dated 09.03.2020 was not inclined to do so (i.e.,) extend the time but on the other hand had observed that there had been an all-round dereliction of duty and absolute negligence and scanty disregard to the Insolvency Resolution Process on the part of the Operational Creditor and as well as the IRP. 7. Further, in the said Order, it was also pointed out that the Operational Creditor at least in its own interest and acting on behalf of the other Creditors, the CIRP being the proceedings in rem, was required to communicate to the IRP/Applicant of the initiation of the CIRP, which has not been done in the instant case, as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication has been filed relying upon the decision of the Hon'ble Supreme Court rendered in Swiss Ribbons Pvt. Ltd., Anr. Vs. Union of India Ors. [(2019) 4 SCC 17] for the exercise of inherent powers as contained under Rule 11 of NCLT Rules, 2016. 11. Based on the same set of facts during the course of submissions made in IA/8/2021, Ld. Counsel for Applicant/IRP also represents that an Application in IA/2/2020 has also been filed arising out of the Order passed by this Tribunal in MA/1427/2019, which had been challenged before the Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 1013 of 2020 wherein the Ld. Counsel for the Applicant/IRP also brings to the notice of this Tribunal the penultimate portion of the Order marked as Page No. 36 to the typed set to the said Application, which reads as follows:- In the circumstances of the case, the appeal is permitted to be withdrawn with liberty granted to the Appellant to file an application before the Adjudicating Authority (National Company Law Tribunal), Division Bench-I, Chennai for re-visiting the impugned order and expunging the observations/remarks made against the Appellant as Resolution Professional, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IBBI as well as Rule 11 of NCLT Rules, 2016, the CIRP initiated by this Tribunal in relation to the Corporate Debtor, namely, M/s. Sandhya Shipping Services Private Limited, stands withdrawn consequent to the CP/737/IB/2018 being permitted to be withdrawn. However, the Operational Creditor is directed to remit a sum of ₹ 10,000/- to PM CARES FUND by way of costs as the action of Operational Creditor in not intimating in time the IRP appointed by this Tribunal so that the CIRP could have been taken up in the right earnest by the IRP, which cannot be condoned. 16. Now, coming to CA/2/2021 wherein the Applicant has prayed for the following reliefs arising out of the same set of facts (i.e.,) in relation to the CIRP of the Corporate Debtor, namely, (a) Expunge the remarks of dereliction of duty and absolute negligence made against this Applicant at Page 3 of the Order dated 09.03.2020 in MA/1427/2019 in CP/737/IB/2018 and thus render justice. (b) Pass such other or further Orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case and thus render justice . A careful perusal of the Order dated 09.03.2020 annexed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard and importance of the pivotal position of IRP holds in the Scheme of IBC, 2016 and the relevant paragraphs are reproduced hereunder:- ABOUT THE IMPORTANCE OF AN IRP IN THE CIR PROCESS: (8) .........In this regard, it is to be observed that IRPs carry a very serious onus for effectively carrying out the requirements under the provisions of IBC, 2016. For e.g. under Section 17 of IBC, 2016 from the date of appointment of an IRP, the management of affairs of the CD are to vest in the IRP and the powers of the Board of Directors of the CD shall stand suspended and be exercised by the IRP. It is also provided in clause (d) of Sub-section (1) of Section 17 of IBC, 2016 that the financial institution maintaining the accounts of the CD is required to act in accordance with the instructions of IRP. Further, officers of the CD are also required to report to the IRP and also to provide access to documents and records, as may be required by the IRP for the discharge of his functions. The duties of the IRP has been listed out under Section 18 of IBC, 2016, wherein, one of the important duties of the IRP is to constitute a Committee of Creditors (CoC) after receiving the claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the IRP who is Applicant herein, his name has been included in the panel which has been forwarded to this Tribunal and in view of the same the prayer as sought for by the IRP in the Application cannot be encouraged particularly having come to know that he has been appointed as an IRP. It is also brought to the notice of this Tribunal by way of the above referred affidavit filed by IBBI that even though in the present Application, the grounds of unavoidable circumstances has been cited seeking for the discharge, however, vide email annexed dated 26.4.2018 and as evidenced by Annexure A-4 filed along with the reply affidavit, the reasons given therefore is on the grounds of inability to devote adequate time to the subject assignment and in view of the same, the reasons for discharge advanced by the IRP are contradictory and non-maintainable it is stated. Taking into consideration, the guidelines, it is also pointed out that every assignment under the Code irrespective of its size and stake has the same importance under the law and is required to be seen with the same importance by the IRP. Provisions of Section 17 and 18 of IBC, 2016 which had already been referred to by this Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility in view of the facts being different with which we are also equally conscious of the same, but however in the present case we are concerned with the casual manner in which be it the Applicant or the parties to the main CP, have dealt with the Order passed by this Tribunal on 14.03.2019 and by their respective attitude thereby subverting the said Order and the procedure laid down under the IBC, 2016 all of which does not behove well in relation to its implementation which this Tribunal is compelled to take note of. 18. Further, as to whether the plea of e-mail landed in Spam Mail of the e-mail of the Applicant can lead to the invocation of maxim to the effect that the 'acts of the Court should prejudice none', we are unable to accept that the registry of this Tribunal had not performed its duty. Both under Section 7 and Section 9 of IBC, 2016, this Tribunal is required to communicate the Order of admission/rejection as the case may be in accordance with said provisions of Sections 7 and 9 as the case may be, and nowhere an onus has been placed upon this Tribunal for the communication of the Order of admission to the IRP appointed by this Tribunal. 19. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the E-Mail only on 11th March 2013. Such a lethargy from the company, which claims to be contesting a highly competitive bid cannot be expected and more so when the E-Mails are discovered in a short span of time and can be addressed to if they are attended precautious. Again at Paragraph No. 17 of the judgment referred supra the Hon'ble High Court of Delhi has held as follows: (17) We also do not agree with the submission of the learned senior counsel Mr. Ravi Gupta that the E-Mail has gone into the spam folder and could not be discovered due to the fault of the respondent and thus resulted in belated reply. Firstly, we find that there is no fault as such on the part of respondent. The purpose of sending the E-Mail to the petitioner was to communicate with it on the given address which was done by the respondent though on one E-Mail ID. Thereafter, it was the petitioner's duty to discover the E-Mail from the folder and if the same has gone into the spam folder and the petitioner could not discover the said E-Mail due to the said reason, the same cannot by any stretch of imagination be the fault of the respondent but is a technical flaw in the computer system of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
