TMI Blog2022 (3) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... h June, 2017 and for the last 23rd equipment, the rental start date was 01st July, 2016 and last rental date was 30th June, 2020. So the term of the lease deed has already expired by June, 2020 prior to public announcement which was made on 13th August, 2020 asking the creditors to submit their claims and the Respondent No. 1 has already submitted its claim 13th January, 2021 of Rs. 1.05 Crore approx., which included Rs. 11 lacs approx. towards lease rental dues and claim towards Fair Market Value - Rs. 43.54 lacs. The Resolution Professional has already considered Rs. 95 lac in total out of Rs. 1.05 Crore. Thus, we are not in a position to accept even the claim towards extension rental of Rs. 2.71 Crore. There are the Appeal and the Appeal deserves to be allowed - appeal allowed. - Company Appeal (AT) (Insolvency) No. 951 of 2021 - - - Dated:- 25-3-2022 - Ashok Bhushan, J. (Chairperson) And Dr. Ashok Kumar Mishra, Member (T) For Appellant: Amar Dave, Anup Jain, Udit Gupta, Rohit Gupta And Rubina Khan, Advocates For Respondents: Abhijeet Sinha, R. Sudhinder, Nikhil Kumar Singh, Saikat Sarkar, Ekta Bhasin, Pratiksha Agrawal, Nishit Dhruva, Prakash Shinde, Prateek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was subsequently extended to 04.02.2021. 5. The Resolution Plans were received by the Appellant on 04.02.2021 and the same was placed before the CoC on 06.02.2021 for their consideration. The CoC on various occasions negotiated with the prospective Resolution Applicants for improving the offers. The Respondent No. 1 filed an Additional Claim of Rs. 11.79 Crores with the RP on 11.08.2020. It was submitted by the Ld. Counsel for the Appellant that the R1 has delayed by 256 days in filing their additional claim. It has also submitted by the Appellant that vide his email dated 26.04.2021 conveyed to the Respondent No. 1 that since their claim is filed at a belated stage when the Resolution Plan was finalized and is pending before the CoC for approval. The said claim cannot be considered as the same is time barred. It was also submitted that the Respondent No. 1 vide email dated 28.04.2021 requested for consideration of their claim which was replied negatively by the Appellant vide email dated 21.05.2021. It was also submitted by the counsel for the Appellant that 270 days of the CIRP was expiring on 15.06.2021 itself so the RP filed I.A. No. 1300 of 2021 praying for sanction/a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and CIRP Regulations, the Appellant/RP is required to verify the claim on merits, the claim is even barred by the limitations prescribed under the Regulations. The Ld. Counsel for the Appellant/RP has empathically demonstrated that the Appellant has verified the claim based on the direction of Adjudicating Authority given on 30.11.2021 and the Appellant/RP after verifying the claim with records has found the said alleged claim of Rs. 3,14,81,158/- is inadmissible in law and in fact has cited the several reasons for the same including the followings: (i) The claim form filed by the R1 depicts a claim of Rs. 1,05,71,482.26 as per column 4 of the form B dated 13.01.2021 appearing at pg. no. 11 of the submissions by the Appellant by vide diary no. 32064 dated 10.12.2021. The computation of the above said due amount is appearing at pg. 19 of the above said submissions. Hence, what the claim has been submitted is itself not tallying with the figures provided at Annexure 3 (pg. 19) and in the form B at Pg. 11. (ii). It was also stated by the counsel for the Appellant/RP that the Respondent No. 1 has not raised any invoice or intimation making such a claim of lease rental from date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim is a step prior to making of information memorandum. This is crucial because the creditors as well as the Resolution Applicant will be required to consider the overall condition of the Company before predicating in the process as well as making decision as to the fate of the Company. If the claims are to be permitted after preparation of Information Memorandum and submissions of the Resolution Plan then it will be never to possible to complete the CIRP process. Furthermore, if the Adjudicating Authority was to consider the claim after sanctioned of the Resolution Plan by the CoC then the entire process will have to be reworked to ascertain again whether the Creditor is eligible to get the payment? and how much of the amount will have to be considered not just by the Resolution Applicant but also by the CoC with a underline impact that it will affect everyone's entitlement. (v) They have also cited the Regulation 12(2) vide Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04.07.2018). Prior to the amendment, the Regulation 12(2) read as under:- 12. Submission of proof of claims. ........(2) A creditor, who failed to submit proof of claim with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontaining the name of creditors, the amounts claimed by them, the amounts of their claims admitted and the security interest, if any, in respect of such claims;' among other particulars. 13. Further, in the same Regulations, very clear timeline has been prescribed under Regulation 12(2) for submission of claim with proof by financial and corporate debtor, quite obviously to enable the potential resolution applicants to submit realistic and workable resolution plans after due diligence, and which can be taken up further for finalisation. The relevant regulation is reproduced hereunder: 12. Submission of proof of claims. - xxxxxx (2) A creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof to the interim resolution professional or the resolution professional, as the case may be, on or before the ninetieth day of the insolvency commencement date. Xxxxx The purpose of issuing public notice is to make all the interested parties/stakeholders aware of the initiation of the CIRP of the Corporate Debtor and the information memorandum which is issued subsequently, after the collection and collation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, we find that Adjudicating Authority has dealt with the issue of approval of the resolution plan submitted by the Resolution Professional and, inter alia, rejecting the claim of the Appellant in accordance with the requirements of the statute, and in keeping with the overall objective and scheme of the IBC (ix) It was also stated by the Ld. Counsel for the Appellant that it is beyond any doubt and now a settled law that the outer time line for filing any claim is 90 days from the date of Insolvency commencement, which in this case expired on 09.11.2020. There is no provision for condonation of delay in filing the claim. Section 42 of the Code provides the power to condone the delay in liquidation proceedings, but no such power is imbedded in the code for condonation of delay in filing the claim in CIRP Process. A lot of stress was given that the CIRP is to be completed within the particular time frame. Neither inherent power nor any other Hon'ble Apex Judgment provides for such power to the Adjudicating Authority to consider the claim after the Resolution Plan is approved by the CoC, Adjudicating Authority is to work within the framework laid down in the Code and the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appeal Paper Book vide Para z as below:- The Adjudicating Authority ought to have considered that it is a classic case where a party like Tata who has all means and infrastructure to file claims inspite of knowledge of commencement of CIRP filed its claim after almost 8 months of the process having commenced, and now attempting to derail the entire CIRP Process and push the Corporate Debtor into liquidation. (xii) The Ld. Counsel for the Appellant also pointed out that if any resolution plan of Rs. 15 Crores an amount of Rs. 3.14 Crores (Provisioned for 8 months CIRP Process or so) is to be paid as CIRP costs, the entire plan will not just fall but the Company/CD will have to face the Liquidation proceeding. Needless to mention but it is a fact that the Company has no immovable assets and the Company is only having running projects for which the value has been raised in the resolution plan and the amount is to be offered by the Resolution Applicant. The Counsel for the Appellant also pointed out that the value offered by the Resolution Applicant is more than the value of liquidation and realizable value. (xiii). Based on the above submission and the facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Appellant R3. She has accordingly submitted for setting aside the impugned order. Submissions of Respondent No. 1 11. It is the case of the Respondent No. 1 that they have entered into 'Operating Lease facility' vide its sanction letter dated 06th May, 2015 to CD/Appellant for leasing security system devices and other peripheral assets/goods wherein goods purchased by the R1 would then be leased to the CD on monthly lease rentals. The R1 has entered into a 'Master Lease Agreement' on 14th May, 2015 with the CD/Appellant whereby the agreements provides for periodic lease rental payment to be paid by the CD to the R1. The Operating part of the lease term and lease rental are provided at page 149 para 2 of the lease deed of the Appeal paper book. It is also provided that the CD will install, use, operate and maintain the goods in good working condition and repair them at his own costs and expenses. The CD will bear the entire risks of the goods and indemnify the Respondent No. 1 against any loss. As per the Ld. Counsel for the R1 the agreements provides for that at the expiration of the lease term/renewal term, the CD must notify the R1 by issuing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval of Resolution plan by the Adjudicating Authority as per Section 31 of the Code. [Swiss Ribbons Pvt. Ltd. and Ors. Vs. Union of India and Ors.; Ghanashyam Mishra and Sons Pvt. Ltd. Vs. Edelweiss Asset Reconstruction Company Limited and Ors. Section 25 of the Code r/w Regulations 14(2) of the CIRP Regulation]. 13. The Ld. Counsel for the R1 has emphatically submitted that revised Form-B is not a fresh claim but only a revised claim which includes lease rental for CIRP period. The Ld counsel for the R1 has cited the various Judgments of Hon'ble Supreme Court as well as this Tribunal to supplement his case has given below: Prerna Singh Vs. Committee of Creditors, Xalta Food and Beverages Pvt. Ltd. and ors, NCLAT, Contempt case (AT) No. 03 of 2020 and CA(AT)(Ins) No. 104 of 2019 held at para 19 to 21: 19. Section 14(1) (d) provides that during the moratorium period the lessor or an owner of the property cannot recover the possession of the property from the Corporate Debtor. Regulation 31 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations 2016 is as under:- 31. Insolvency resolution process costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy, which were distributed earlier across multiple fora...Therefore, considering the text of Section 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist. (emphasis supplied) 19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. The NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the Adjudicating Authority is sufficientl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 14 read with Regulations referred above makes it clear that if the supply is for managing the operations of the Corporate Debtor the supply cannot be interrupted during moratorium except where Corporate Debtor has not paid dues arising from such supply during the moratorium period. In present matter the consumption is stated to have been for running of office and security of Corporate Debtor. In that case, the same will be part of the CIRP Costs which can be recovered when the Resolution Plan is approved or would form part of Section 53 if the Liquidation has been initiated. 12. As such, for these reasons, in the facts of the matter, we are unable to disagree with the Adjudicating Authority when in its order dated 21st October, 2020 it was observed that the electricity charges during CIRP would form part of CIRP Costs. Swiss Ribbions Pvt. Ltd. and Anr. Vs. Union of India and Ors., Supreme Court, (2019) 4 SCC 17 held at para 88 89: 88. It is clear from a reading of the Code as well as the Regulations that the resolution professional has no adjudicatory powers. Section 18 of the Code lays down the duties of an interim resolution professional as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to vet and verify claims made, and ultimately, determine the amount of each claim as follows: '10. Substantiation of claims.-The interim resolution professional or the resolution professional, as the case may be, may call for such other evidence or clarification as he deems fit from a creditor for substantiating the whole or part of its claim.' xxx xxxxxx ' 12. Submission of proof of claims.-(1) Subject to sub-regulation (2), a creditor shall submit claim with proof on or before the last date mentioned in the public announcement. (2) A creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof to the interim resolution professional or the resolution professional, as the case may be, on or before the ninetieth day of the insolvency commencement date. (3) Where the creditor in sub-regulation (2) is a financial creditor under regulation 8, it shall be included in the committee from the date of admission of such claim: Provided that such inclusion shall not affect the validity of any decision taken by the committee prior to such inclusion. 13. Verification of claims.-(1) The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under intimation to the Board. (3) Where the resolution professional makes a determination under sub-regulation (2), he shall apply to the Adjudicating Authority for appropriate relief on or before the one hundred and thirty-fifth day of the insolvency commencement date. S Rajendran, RP of PRC International Hotel Pvt. Ltd. Vs. Jonathan Mouralidarane, held at para 3: 3. Having heard learned Counsel for the Appellant, we are of the opinion that the 'Resolution Professional' had no jurisdiction to determine the claim as pleaded in the Appeal. He could have only collated the claim, based on evidence and the record of the 'Corporate Debtor' or as filed by Jonathan Mouralidarane ('Financial Creditor'). If an aggrieved person thereof moves before the Adjudicating Authority and the Adjudicating Authority after going through all the records, comes to a definite conclusion that certain claimed amount is payable, the 'Resolution Professional' should not have moved in Appeal, as in any manner, he will not be affected. Ghanashyam Mishra Sons Pvt. Ltd. Vs. Edelweiss Asset Reconstruction Company Limited (2021) 9 SCC 657 held at para 93 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise be caused and that are dealt with by Section 14. The statutory freeze that has thus been made is, unlike its predecessor in the SICA, 1985 only a limited one, which is expressly limited by Section 31(3) of the Code, to the date of admission of an insolvency petition up to the date that the Adjudicating Authority either allows a resolution plan to come into effect or states that the corporate debtor must go into the liquidation. For this temporary period, at least, all the things referred to under Section 14 must be strictly observed so that the corporate debtor may finally be put back on its feet albeit with a new management. Victory Iron Works Limited Vs. Jitendra Lohia RP of Avani Towers Pvt. Ltd. held at para 21: 21. There are certain facts which are very clear from the deliberation of submissions including the pleadings by the parties that M/s. Energy Properties Pvt. Ltd. is the owner of the property and the Corporate Debtor (in CIRP) is a Developer of the Property in terms of the Development Agreement dated 16.06.2008 and they will be governed by inter - se agreements. Here the Adjudicating Authority has not gone into the issue of ownership of the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist. 70. It is appropriate to refer to the observations in the Report of the BLRC, wherein it noted the role of the NCLT, as the Adjudicating Authority for the CIRP, in the following terms: An adjudicating authority ensures adherence to the process At all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on utility or the depository of securities or any other registry that records the ownership of assets including- ....... (vi) assets subject to the determination of ownership by a court or authority; Embassy Property Developments Pvt. Ltd. Vs. State of Karnataka and Ors,. (2020) 13 SCC 308 held at para 37 to 38: 37. From a combined reading of Sub-section (4) and Sub-section (2) of Section 60 with Section 179, it is clear that none of them hold the key to the question as to whether NCLT would have jurisdiction over a decision taken by the government under the provisions of MMDR Act, 1957 and the Rules issued thereunder. The only provision which can probably throw light on this question would be Sub-section (5) of Section 60, as it speaks about the jurisdiction of the NCLT. Clause (c) of Sub-section (5) of Section 60 is very broad in its sweep, in that it speaks about any question of law or fact, arising out of or in relation to insolvency resolution. But a decision taken by the government or a statutory authority in relation to a matter which is in the realm of public law, cannot, by any stretch of imagination, be brought within the fold of the phrase arising out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 14 - Moratorium (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. Explanation.--For the purposes of this sub-Section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a license, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 14 (1) (d). It is availing of the services of the Corporate Debtor and is using the property that has been leased to it by the Corporate Debtor. Thus, Section 14 is indeed not applicable to the present case. However, in Gujarat Urja (supra) it was held that the NCLT's jurisdiction is not limited by Section 14 in terms of the grounds of judicial intervention envisaged under the IBC. It can exercise its residuary jurisdiction under Section 60(5)(c) to adjudicate on questions of law and fact that relate to or arise during an insolvency resolution process. This Court observed: 91. The residuary jurisdiction of NCLT under Section 60(5)(c) of IBC provides it a wide discretion to adjudicate questions of law or fact arising from or in relation to the insolvency resolution proceedings. If the jurisdiction of NCLT were to be confined to actions prohibited by Section 14 of IBC, there would have been no requirement for the legislature to enact Section 60(5)(c) of IBC. Section 60(5)(c) would be rendered otiose if Section 14 is held to be exhaustive of the grounds of judicial intervention contemplated under IBC in matters of preserving the value of the corporate debtor an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arat Urja (supra), the contract in question was terminated by a third party based on an ipso facto clause, i.e., the fact of insolvency itself constituted an event of default. It was in that context, this Court held that the contractual dispute between the parties arose in relation to the insolvency of the corporate debtor and it was amenable to the jurisdiction of the NCLT under Section 60(5)(c). This Court observed that ....NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the corporate debtor... The nexus with the insolvency of the corporate debtor must exist (para 69). Thus, the residuary jurisdiction of the NCLT cannot be invoked if the termination of a contract is based on grounds unrelated to the insolvency of the Corporate Debtor. 29. It is evident that the appellant had time and again informed the Corporate Debtor that its services were deficient, and it was falling foul of its contractual obligations. There is nothing to indicate that the termination of the Facilities Agreement was motivated by the insolvency of the Corporate Debtor. The trajectory of events makes it clear that the alleged breaches noted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission of Resolution Plan was 14th January, 2021 originally. e. The CoC approved the Resolution Plan on 11th June, 2021 and the 'Resolution Professional' has filed IA No. 1300 of 2021 praying for sanction/approval of the Adjudicating Authority to the Resolution Plan approved by the CoC with a 98.85% voting right as 270 days of the CIRP was expiring on 15th June, 2021 itself. f. The 'bone of contention' between the Appellant and the Resolution Professional and Respondent No. 1 is the amount of Rs. 3,14,81,158/- allowed as CIRP costs by the 'Adjudicating Authority' through the impugned order dated 02nd September, 2021 without verification of costs and other details by 'Resolution Professional' or without recommendation of 'CoC' even seems without any scrutiny by the 'Adjudicating Authority'. g. The origination of the dues are with reference to the 'Master Lease Agreement' dated 14th May, 2015 entered by the Respondent No. 1 with the Corporate Debtor/Appellant whereby the agreements provided for periodic lease rental payment to be paid by the CD to the R1. h. The Master Lease Agreement (appearing at page 28 to 44 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es has been raised for such a claim then how such a claim can be admitted. l. The submission of the Ld Counsel for the Respondent No. 1 that there is no need for submission of invoice during so called deemed extension; it does not seems to be tenable as also the submission of the Ld. Counsel for the Respondent no. 1 that there is no requirement of calculation and verification of CIRP costs by the Resolution Professional/CoC as the Adjudicating Authority has already allowed the partially amount is also not tenable as it is unheard that the Resolution Professional should pay the amount without any verification. m. For bringing a clarity on the concept of CIRP cost and related issues we are depicted herein below the related provisions of the Code - Section 5(13), Section 14, Section 20, Section 25, Section 30 related Regulation IBBI CIRP Regulation 2016 vide Chapter -IX- 31, 32, 33 34: Section 5(13) - insolvency resolution process costs means- (a) the amount of any interim finance and the costs incurred in raising such finance; (b) the fees payable to any person acting as a resolution professional; (c) any costs incurred by the resolution professional in running ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such corporate debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified.] (3) The provisions of sub-section (1) shall not apply to- [(a) such transactions, agreements or other arrangements as may be notified by the Central Government in consultation with any financial sector regulator or any other authority;] (b) a surety in a contract of guarantee to a corporate debtor.] (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. Section 20: Management of operations of corporate debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fulfil such criteria as may be laid down by him with the approval of committee of creditors, having regard to the complexity and scale of operations of the business of the corporate debtor and such other conditions as may be specified by the Board, to submit a resolution plan or plans.] (i) present all resolution plans at the meetings of the committee of creditors; (j) file application for avoidance of transactions in accordance with Chapter III, if any; and (k) such other actions as may be specified by the Board. Section 30: Submission of resolution plan. (1) A resolution applicant may submit a resolution plan 1 [along with an affidavit stating that he is eligible 1A under section 29A] to the resolution professional prepared on the basis of the information memorandum. (2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan- (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the [payment] of other debts of the corporate debtor; [(b) provides for the payment of debts of operational creditors in such manner as may be specified by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itors for its approval such resolution plans which confirm the conditions referred to in sub-section (2). [(4) The committee of creditors may approve a resolution plan by a vote of not less than 5 [sixty-six] per cent of voting share of the financial creditors, after considering its feasibility and viability, [the manner of distribution proposed, which may take into account the order of priority amongst creditors as laid down in sub-section (1) of section 53, including the priority and value of the security interest of a secured creditor] and such other requirements as may be specified by the Board: Provided that the committee of creditors shall not approve a resolution plan, submitted before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2017, where the resolution applicant is ineligible under section 29A and may require the resolution professional to invite a fresh resolution plan where no other resolution plan is available with it: Provided further that where the resolution applicant referred to in the first proviso is ineligible under clause (c) of section 29A, the resolution applicant shall be allowed by the committee of creditors such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, and not for generation of hydro-electricity. 33. Costs of the interim resolution professional. (1) The applicant shall fix the expenses to be incurred on or by the interim resolution professional. (2) The Adjudicating Authority shall fix expenses where the applicant has not fixed expenses under sub-regulation (1). (3) The applicant shall bear the expenses which shall be reimbursed by the committee to the extent it ratifies. (4) The amount of expenses ratified by the committee shall be treated as insolvency resolution process costs. [Explanation. - For the purposes of this regulation, expenses include the fee to be paid to the interim resolution professional, fee to be paid to insolvency professional entity, if any, and fee to be paid to professionals, if any, and other expenses to be incurred by the interim resolution professional.] 34. Resolution professional costs. The committee shall fix the expenses to be incurred on or by the resolution professional and the expenses shall constitute insolvency resolution process costs. [Explanation. - For the purposes of this regulation, expenses include the fee to be paid to the resolution professional, fee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Alok Kaushik Vs. Bhuvaneshwari Ramnathan, Supreme Court, (2021) 5 SCC 787 It is very much clear from para 69 cited by the Respondent No. 1 that the NCLT and NCLAT is to ensure that they do not supplant the legitimate jurisdiction of other courts when the dispute does not solely relate to insolvency of the Corporate Debtor. Apparently it looks that as far as cost aspect are concerned in terms of the provisions of the Code as stated above and based on claims submitted in response to public announcement, the Resolution Professional has covered substantially the entire amount. However, if the interpretation of contractual clauses are involved then it is not under the jurisdiction of Adjudicating Authority to interpret and comment without ascertaining the approval of CoC as it is their commercial wisdom of CoC which cannot be taken away by the Adjudicating Authority on the commercial issues or on commercial terms and conditions, it may be done by a Civil Court. Executive Engineer, Uttar Gujarat VIJ Company Ltd. Vs. Mr. Devang P Samapat, RP of M/s. Kanoovi Food Pvt. Ltd. NCLAT, CA(AT) (Ins) No. 371 372 of 2021 Para 11 has cited by the Respondent No. 1 in the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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