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TMI Blog2023 (2) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Corporate Debtor has been filed against the order dated 02.12.2022 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata, by which IA(I.B.C.)/678(KB)2022 filed by the RP under Section 19, sub-section (2) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "IBC") has been dismissed as infructuous. The Adjudicating Authority has also imposed cost of Rs.25,000/- on the RP. Aggrieved by the order, RP has come up in this Appeal. Company Appeal (AT) (Insolvency) No. 70 of 2023 2 2. Brief facts, necessary to be noticed for deciding this Appeal are: (i) Corporate Insolvency Resolution Process ("CIRP") commenced against the Corporate Debtor Stone India Limited vide order dated 09.11.2021. Earlier Inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration offered at that time. The order dated 25.04.2022 also granted liberty to move a fresh Application. Thus, the Application IA(I.B.C.)/678(KB)2022 was in accordance with the earlier order dated 25.04.2022 and cannot be said to be frivolous. It is further submitted that when Adjudicating Authority on the said Application having issued several directions to Respondent No.1 to extend cooperation and has also summoned Respondent No.1 to appear in person, how on the next date Application can be said to be frivolous and be dismissed as infructuous. It is further submitted by learned Counsel for the Appellant that order dated 02.12.2022 shows complete non-application of mind by the Adjudicating Authority and prejudicially affect the rights of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Professional which is at page 505. 3. Our attention has been drawn to e-mail dated 2nd April, 2022, 19th May, 2022 in this regard. 4. Post this matter on 07.09.2022. In the meantime, we direct the respondent to furnish the entire information and all documents sought by the RP on or before next date. If this is not done, appropriate orders shall be passed with further necessary directions." 7. On 14.10.2022, when the Adjudicating Authority issued a direction taking a view that Respondent No.1 is trying to avoid the process of this Court and Respondent No.1 was directed to personally appear on 21.11.2022. Following was the order passed by the Adjudicating Authority on 14.10.2022 in IA(I.B.C.)/678(KB)2022: "IA (I.B.C)/678/KB/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No. 1 on 18th August, 2022. Wherein it was directed that the respondent to furnish entire information and all documents sought by RP on or before next date. 7. It was further made clear if this was not done, appropriate orders shall be passed with further necessary directions. After that the matter has been listed a number of times. We have considered the submission Ld. Counsel appearing for R1 we are of the view over this period after issues of notice till today he had enough time to file reply or take its stand to the maintainability or the merits of the IA by way of appropriate proceedings. 8. From the entire circumstances we are convinced R1 is trying to avoid the process of this court as well as the directions issued by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (KB)2022 is dismissed as infructuous. b. A cost of Rs.25,000/- to be paid by the Resolution Professional from his own sources to be deposited in the Prime Minister's National Relief Fund within a period of one week." 9. The reason apparent from the order dated 02.12.2022 for rejecting the Application as infructuous is that earlier IA No.13 of 2022 seeking cooperation was disposed of. When we look into the order itself, it is clear that in 25.04.2022 order, liberty was reserved to RP to file an Application, if there is no continued cooperation from the suspended Board of Directors, for seeking prosecution under Section 236 of the Code. The prosecution under Section 236 is a different aspect from running a CIRP as per timeline prescribed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application as frivolous and infructuous. There is not even an indication or any reason given in the order of the Adjudicating Authority, as to why cost of Rs.25,000/- was imposed on the RP. We, thus, are satisfied that order dated 02.12.2022 is clearly unsustainable and cannot be maintained. 10. Coming to the submission of learned Counsel for Respondent that Resolution Plan had already been approved by the Adjudicating Authority, which is pending consideration before the Adjudicating Authority, it is for the Adjudicating Authority to consider as to what directions can be issued in IA(I.B.C.)/678(KB)2022. 11. In result, we allow the Appeal and set aside the order dated 02.12.2022 passed in IA(I.B.C.)/678(KB)2022 and revive the IA(I.B.C.) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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