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TMI Blog2022 (6) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate For the Applicant in : Mr. Vaibhav Sharma, Advocate IA No.550/2020 For the Applicant in : Mr. Chetan Mittal, Senior Advocate IA No.194/2022 Mr. Alok Kumar Jain, Advocate Mr. Nahush Jain, Advocate For the Respondent/ Resolution Professional in : Dr. Rajansh Thukral, Advocate CA No.568/2019, Dr. Surekha Thukral, Advocate IA No.548/2020, IA No.550/2020 & IA No.194/2022 ORDER Per : Subrata Kumar Dash , Member ( Technical ) All these applications bearing CA No.568/2019, IA No.548/2020, 550/2020 and 194/2022 have been taken up together for discussion as these have been filed in the same CP (IB) No.391/Chd/Pb/2018. It is pertinent to mention here that the resolution plan in this case filed by application bearing IA No.458/2020 has been rejected and the matter is referred back to the Committee of Creditors (CoC). 1. CA No.568/2019 The present application has been originally filed by Vardhman Industries Limited through its Resolution Professional, Mr. Ashok K. Gulla against Mr. Sumat Kumar Gupta, Resolution Professional of Vallabh Textiles Company Limited, under Section 60(5) of the IBC, 2016. Subsequently, under the direction of this Bench vide order dated 02.02.2022, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant was filed within the prescribed time period and subsequently rejected and that no belated claim may be filed. Subsequently, the applicant sent another e-mail on 05.06.2019 duly providing a detailed explanation as to how the claim was arbitrarily rejected. The applicant had submitted that its claims are borne out and evident by the audited accounts of the corporate debtor and also the audited accounts of Vardhman Industries Limited. It is also submitted that such accounts of Vardhman Industries Limited were prepared much before the applicant took over the management as the RP and when Vardhman Industries Limited was under the common management with the corporate debtor. It is further pointed out that the applicant had requested the RP on 27.12.2017 to confirm the balance amount as on 16.11.2017, a date prior to the CIR Process of the Corporate Debtor between Vardhman Industries Limited and the corporate debtor, and in response, a handwritten confirmation showing a credit amount of Rs.10,79,90,954/- confirming outstanding balance had been handed over. A copy of the said letter dated 27.12.2017 and subsequent confirmation has been attached to this application as Annexure A-7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such transactions. It is also stated that the applicant failed to satisfy the RP with respect to compliance of the provisions with respect to Section 297 and 295 of the Companies Act, 1956 and the corresponding provisions of the Companies Act, 2013. 5. In the rejoinder filed by Diary No.5880 dated 29.10.2019, the applicant has further averred that in the teeth of the decision of the Hon'ble Supreme Court of India in the judgement of Swiss Ribbons Private Limited and Anr. Vs. Union of India and Ors. in Writ Petition (Civil) No.99 of 2018, the Resolution Professional has no adjudicatory powers insofar as claims of creditors are concerned in CIRP. 6. It is also stated that the respondent has never before taken the defence of time value of money or for that matter that of the contraventions of the provisions of Section 295 and 297 of the Companies Act, 1956 and Section 185 of the Companies Act, 2013. The applicant has also submitted in para 18 of its rejoinder, a reconciliation of the opening and closing balance of the corporate debtor in the books of Vardhman Industries Limited as on 31.03.2009 and 01.04.2009 and further stated that the said dues stand duly reconciled in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. From the correspondence between the parties, it is clear that no serious effort was made by the Resolution Professional to classify the debts into financial and operational debts of the applicant. There is no denying the fact that the Resolution Professional needs documents and supporting evidence to decide on the nature of a claim for the purpose of admission of the same. The documents brought on record have not shown any kind of non-compliance by the applicant to any query raised by the Resolution Professional in this regard. 11. The very fact that prior to the CIRP both the applicant and the respondent were under the same management would have ensured a better appreciation of the facts presented by the applicant relating to its claim. In the course of the present proceedings, the Resolution Professional could not justify the rejection of the detailed claim made by the applicant and also his inability to classify the same into operational and financial debts. The Resolution Professionals' statements that after receiving details of the claim he could not change his earlier decision to reject the same on the ground that he was advised not to review his original rejecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 till date in the case of Applicant No.2; and also to release the dues of the Applicant Nos.1-4 as filed in respective Form - Ds; or at least makes a provision for the dues payable to the Applicant Nos.1-4, based upon the claims filed in the person with the Resolution Professional during June 2019 itself. 3. In the present application, it is stated that the CIRP in the present case commenced from April 2019 and the Committee of Creditors (CoC) had resolved to keep the company a running concern. It is stated that the CoC had fixed the salary of Mr. Vikram Jain, Suspended Managing Director and Mrs. Lata Jain, employee of the company, at Rs.1,00,000/- (Rupees One Lakh Only) per month each and did not approve the salary payable to Mrs. Zarqa Jain. It is further stated that consequent to directions issued by the CoC in its meeting dated 21.05.2019, applicant No.1 was paid the monthly salary determined by the CoC until August 2019, whereas applicant No.2 was paid her salary until June 2019. Applicant No.4 worked for a period of two months after initiation of the CIRP as per the directions of the RP, i.e. until 31.05.2019 but was only paid his salary till March 2019. It is also stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-attendance of office and unacceptable behaviour on the part of applicant No.2 has also been made out by the respondent. It is also pointed out that this termination by the RP was not set aside by CoC and the RP has already clarified to the CoC that salaries will be released to her only if any specific directions are issued. As regards applicant No.3, it is stated that he left the services of the company on 31.03.2019 prior to the commencement of the CIRP on 12.04.2019. It is further submitted that Applicant No.4 resigned from the services of the company w.e.f. 31.05.2019 without serving three months' mandatory notice in accordance with the terms and conditions of employment. A copy of the resignation dated 24.07.2019 sent by e-mail dated 08.08.2019 submitted by applicant No.4 is attached as Annexure R-3 to the Respondent's reply. 4.1 The respondent has further stated that Form D alleged to have been submitted by applicant No.1 is not maintainable and not liable to be admitted in view of the provisions of Section 197 of the Companies Act, 2013. As there are no profits in the company and no remuneration is liable to be paid. In view of the financial position of the corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also stated that a judgment of the Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No.1229 of 2019, cited by the respondent to argue that no gratuity is payable unless there is a specific gratuity fund has been completely misread as the said case relates to a situation where liquidation of the corporate debtor had been ordered whereas in the present case, a resolution plan has been approved by the CoC and does not require any payment to be made from the liquidation asset but only requires that such dues are to be accounted for in the resolution plan. 6. In the written submissions filed vide Diary No.01460/6 dated 22.02.2022 by the respondents, it has been strenuously argued that a number of documents like the claim form of all the applicants, letter of termination dated 17.05.2019 and various other documents produced before this Adjudicating Authority have been fabricated by the applicants. It is also stated that though the termination of the Applicant No.1 has been alleged to be wrong the same has been never challenged in any forum. The respondent has also repeated its earlier assertions that the payment of salary to the Applicant No.1 is hit by the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such services are not available with the corporate debtor. Once the terms and conditions of the employment are decided by the Resolution Professional, the amounts due to the Professional are then calculated in terms of those terms and conditions. This can also be monitored by the CoC. 11. Keeping in mind the discussion above, the Resolution Professional is directed to reconsider the claims made by the applicants regarding the payments of their salary, gratuity, and other perks strictly as per the terms and conditions laid down at the time of their employment and put up his findings before the CoC. This Bench, however, cannot decide on the claims and counter-claims made regarding the genuineness of the documents relied upon during the present proceedings and the parties may take up these issues before the Competent Judicial Authorities, if they decide to do so. It is further clarified that this Bench has expressed no view regarding the genuineness or otherwise of these documents. With the above said observation, the present IA No.548/2020 is partly allowed and accordingly stands disposed of. 3. IA No.550/2020 The present application is filed by Mr. Vikram Jain against Mr. Sumat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... National Bank expressing strong opposition to the language used by the RP in the CoC meeting is also attached as Annexure A-2 of the application. 5. The Respondent has filed its reply by Diary No.01500/01 dated 28.10.2021, in which all the allegations levelled by the applicant are denied. It is stated that the respondent came to know about the transfer of the phone numbers only when the advance copy of this application was given to the respondents on 16.10.2020. The applicant in connivance with the employee has got the mobile connections transferred in the name of the applicant. The signatory authority i.e. Mr. Shiv Pankaj, Manager (IT) of the corporate debtor has left the services of the company on 28.10.2020. The Manager (IT) has also written an e-mail dated 16.01.2021, in which it is stated that he has given the NOC regarding the change of ownership of phone numbers under the pressure from the applicant, and the same is attached as Annexure R-4 of the reply. 6. We have heard the learned counsel for the applicant as well as the respondent and perused the records carefully. 7. After considering all the facts before us, the Resolution Professional is directed not to interfere i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of the outstanding dues of Rs.51,35,294/- along with interest of 18% per annum. 4. In its reply filed vide Diary No.00420/01 dated 08.04.2022, the respondent has stated that the issues involved are primarily under dispute with respect to the quality of material which resulted in the non-payment of the amounts involved. The Respondent also states that this Adjudicating Authority does not have jurisdiction to entertain or try an application of this nature which is a recovery suit. It is also asserted that no amount is payable by the corporate debtor and on the contrary an amount of Rs.3,57,985/- is recoverable from the applicant. The respondent has attached copies of communication received from its buyers regarding the defective material supplied. It is also stated that the applicant was asked to furnish USTER test reports to prove the quality of yarn supplied by it. The same has, however, not been complied by the applicant. It is further stated that the RP does not involve himself in the day-to-day matters like this and the entire quality check and the payment schedule has been set by the respective teams of the corporate debtor. The RP has introduced appropriate control meas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yarn made by the applicant to the corporate debtor after the initiation of the CIRP. It is also observed that most payments regarding yarn supplies made by the applicant have been made except in the cases of the disputed transactions of supply of yarn. The reasons for the non-payment by the corporate debtor is attributed to the low quality of yarn supplied by the Applicant. The parties have made claims and counterclaims on the quality issue. In this context, We emphasize that this Tribunal does not provide a forum to settle commercial disputes between the parties nor can it be used as a recovery mechanism. A reference is made to the decision of the Hon'ble Supreme Court in the case of M/s Invent Asset Securitisation and Reconstruction Pvt. Ltd Vs. M/s Girnar Fibres Ltd. (2022) ibclaw.in 26 SC, Civil Appeal No. 3033 of 2022, dated 25-Apr-22, wherein it is observed as under: "Time and again, it has been expressed and explained by this Court that the provisions of the Code are essentially intended to bring the corporate debtor to its feet and are not of money recovery proceedings as such. The intent of the appellant had only been to invoke the provisions of the Code so as to enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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