TMI Blog2022 (11) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... d the order regarding the fees but the Tribunal has not considered the provisions of Ministry of Corporate Affairs dated 24.01.2020 regarding Companies (winding up) Rules, 2020. As the application was filed winding up provisions of Sections 271(a) and 271(1)(a) of the Companies Act, 2013 seeking winding up of the Company. The matter is remitted back to the National Company Law Tribunal, Cuttack Bench, Cuttack with a request to hear the parties herein and pass reasoned orders after considering the provisions of Companies (winding up) Rules, 2020 issued by the Ministry of Corporate Affairs vide Notification dated 24.01.2020 within eight weeks from the date of receipt of this judgment - Appeal disposed off. - Company Appeal (AT) No. 34 of 2022 - - - Dated:- 15-11-2022 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Mr. Hasan Murtaza, Advocate For the Respondent : Mr. Neeraj Kr. Gupta, Advocate JUDGMENT Justice Anant Bijay Singh ; The present Appeal preferred under Section 421 of the Companies Act, 2013 preferred by the Appellant being aggrieved and dissatisfied by the order dated 08.10.2021 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.06 0.05 7. Accordingly, CA No. 37/CB/2021 in CP No. 109/CTB/2020 is disposed of. 2. The facts giving rise to this Appeal are as follows: i) The Appellant herein is the principal majority shareholders of the company which is now in liquidation namely Cuttack Urban Transport Service Ltd. On 16.03.2020, Cuttack Urban Transport Service Ltd. (which is now in liquidation) had filed a company petition before the NCLT, Cuttack Bench Cuttack under Section 271(a) and 272(1)(a) of the Companies Act, 2013 seeking winding up of Cuttack Urban Transport Service Ltd. (for short the Company ) on the reasons and grounds more fully mentioned in the said company petition which was filed being CP No. 109/CTB/2020. ii) By the order dated 07.08.2020, the company petition was admitted and directions were given for publication of notice. Further, Mr. Suresh Chandra Pattanayak, the insolvency professional was appointed as the provisional liquidator under the provisions of Section 273 of the Act. And the provisional liquidator was directed to be paid lump sum fees of Rs. 1 lakh as his remuneration for his services. Further, order dated 20.01.2021 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n being CA No. 37/CB/2021 seeking the following reliefs: a) An order be passed regarding fixing the remuneration of the Applicant for his role as the Liquidator of the Petitioner. b) Such further orders in term of prayers above. c) Such further orders and/or directions be passed as this Hon'ble Tribunal may deem fit and proper. After hearing the parties, the Tribunal passed the impugned order. Hence this Appeal. 3. The Ld. Counsel for the Appellant during the course of argument and in his memo of Appeal along with written submissions submitted that the Tribunal passed the impugned order erroneously, wrongly and without hearing the Appellant relied on the provisions of IBBI (Liquidation Process Regulation, 2016 as amended in 2019 because in the instant case the liquidator was appointed under the provisions of the Companies Act, 2013 pursuant to Chapter-XX of the said Act, 2013. In the instant case does not involve the applicability of the provisions of IBC, 2016 or any of the Rules and Regulations under the Code, 2016. However, the Tribunal erroneously proceeded to fix the remuneration of the Respondent/Liquidator by relying upon the provisions of Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of Provisional Liquidator and Section 275(5) of the Act, the fee shall be decided by NCLT based on task, experience, qualification of Liquidator and size of the company. 7. It is further submitted that the Liquidator herein is a Cost Management Accountant (CMA previously known as Cost and /works Accountant) with over 24 years of experience, with additional qualification of Insolvency Professional, Registered valuer, therefore the competence and qualification deserve to be given its dues. The fee fixed by the Tribunal, is also in two parts, first part is in relation to realization and second part is in relation to distribution. Therefore, the argument raised by the Appellant that some of the assets do not require any effort for realization, would automatically not fetch any remuneration for Liquidator as there will not be any realization and no corresponding fee and as such the argument of the Appellant is that of creating a prejudice against the Respondent and not on correct facts or law. 8. It is further submitted that the procedure of liquidation, priority of payments/distribution, method of realization and distribution are all the way same under Companies Act as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of section 468 and sub-sections (1) and (2) of section 469 of the Companies Act, 2013 (18 of 2013) and these Rules are known as Companies (winding up) Rules, 2020 wherein Rule 14 provides the appointment of Provisional Liquidator or Company Liquidator and also Part IV deals with cost, etc. in which Rule 188 giving Tribunal's power to fix a fee. The Tribunal mainly considered the provisions of IBBI (Liquidation Process) Regulations, 2016 as amended in 2019 which have quoted in para 5 and 6 of the impugned order and passed the order regarding the fees but the Tribunal has not considered the provisions of Ministry of Corporate Affairs dated 24.01.2020 regarding Companies (winding up) Rules, 2020. As the application was filed winding up provisions of Sections 271(a) and 271(1)(a) of the Companies Act, 2013 seeking winding up of the Company. 10. Taking all the facts aforenoted, the impugned order dated 08.10.2021 passed by the National Company Law Tribunal, Cuttack Bench, Cuttack in CA No. 37/CB/20221 in CP No. 109/CTB/2020 is hereby set aside and the matter is remitted back to the National Company Law Tribunal, Cuttack Bench, Cuttack with a request to hear the parties herein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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