TMI Blog2023 (12) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on 12.05.2023 directing the Appellant to hold the meeting within one week from receipt of the order. In spite of the order dated 12.05.2023, no meeting was convened by the Appellant with the agenda of the replacement of the IRP and ultimately the Adjudicating Authority had to pass another order on 27.09.2023 issuing direction to convene the meeting. From the facts which have been brought on the record, it is clear that the appointment of the Appellant as IRP was never confirmed by the CoC nor any material has been brought on record to indicate that the appointment of IRP was confirmed by the CoC by majority of not less than 66% of the vote. When Appellant s appointment as IRP has not been confirmed, the Appellant could have been replaced by the CoC under Section 22 - The objection which was raised before the Adjudicating Authority that the State Bank of India has assigned its debt, hence, it has no locus to file the application has been dealt with by the Adjudicating Authority. It has been noticed in paragraph 3 that assignment was made on 12.10.2023 whereas the application IA No.1874 of 2023 was filed in May 2023 and the resolution to replace the IRP was passed on 06.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and the foregoing submissions, the Applicant most humbly prays that this Hon'ble Tribunal be pleased to: a. Allow the present Application; b. Direct the IRP to convene a meeting of the CoC, with the agenda on 'voting on the replacement of the IRP, as requested by the Applicant, and as mandated by Section 22 of the IBC; c. Direct the IRP to conclude the 1st meeting of the CoC and carry out the voting on the agendas, including the agenda of 'voting on replacement of the IRP, as proposed by the Applicant, and as mandated by Section 22 of the IBC; d. Keep the present application pending till the time the next CoC meeting, with the agenda of voting on the replacement of the IRP , is concluded including the voting process, e. Ad-interim reliefs in terms of prayers (b) and (c) may be granted; f. Permit the change in the IRP/RP of the Corporate Debtor once the necessary resolution of the CoC to that effect is brought on record, as per Section 22(2)(b) of the IBC; g. Pass such other order and / or directions as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case which are necessary. 2.2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for payment of CIRP costs and passed a resolution for replacement of Appellant with Mr. Prawincharan Prafulcharan Dwary. The Resolutions were approved by 100% votes of the CoC approving the resolution for replacement of Appellant. After passing of the resolution dated 06.10.2023, Applications IA No.1874 of 2023 IA No.2860 of 2023 were listed before the Adjudicating Authority on 17.10.2023 on which date after hearing Counsel for the Financial Creditor as well as Counsel for the Appellant, allowed IA No.1874 of 2023 accepting the replacement of the Appellant. Aggrieved by the aforesaid order dated 17.10.2023, this Appeal has been filed. 3. We have heard Appellant who appeared in person and Shri Abhishek Anand, Learned Counsel appearing for the Financial Creditors. 4. The Appellant in support of the Appeal submits that the order dated 17.10.2023 has been passed in violation of natural justice. It is submitted that the order did not consider the submission of the Appellant. It is submitted that the order is non-speaking order and has been hastily passed. It is submitted that the order for replacement of the Appellant as per Sections 22 and 27 of the IBC could have been pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng was held till 07.10.2023 and the resolution for replacement of the IRP was passed with 100% vote of CoC. It is further submitted that the Appellant without informing the CoC started visiting the plants of the Corporate Debtor right from 12.02.2023 and entered into MoU without any information and approval of the CoC. Appellant has thoroughly misconducted himself and has been making allegation on the CoC. It is submitted that the Appeal filed by the Appellant deserves to be dismissed. 6. We have considered the submissions of both the parties and perused the record. 7. From the facts brought on the record, it is clear that the Appellant was appointed as IRP by order of the Adjudicating Authority dated 09.02.2023 which appointment was not even confirmed by the CoC since no resolution could be passed by the CoC confirming the Appellant as Resolution Professional. From the facts it is clear that the first agenda for 1st CoC meeting was issued only on 03.03.2023 which meeting could not be concluded by Appellant till April 2023. CoC was left with no remedy except to file an IA No.1874 of 2023 seeking a direction for convening a meeting with agenda of replacement of the IRP on whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditors, either resolve to appoint the interim resolution professional as a resolution professional or to replace the interim resolution professional by another resolution professional. (3) Where the committee of creditors resolves under sub-section (2)- (a) to continue the interim resolution professional as resolution professional [subject to a written consent from the interim resolution professional in the specified form], it shall communicate its decision to the interim resolution professional, the corporate debtor and the Adjudicating Authority; or (b) to replace the interim resolution professional, it shall file an application before the Adjudicating Authority for the appointment of the proposed resolution professional [along with a written consent from the proposed resolution professional in the specified form] . 27. Replacement of resolution professional by committee of creditors. - (1) Where, at any time during the corporate insolvency resolution process, the committee or creditors is of the opinion that a resolution professional appointed under section 22 is required to be replaced, it may replace him with another resolution professional in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which was raised before the Adjudicating Authority that the State Bank of India has assigned its debt, hence, it has no locus to file the application has been dealt with by the Adjudicating Authority in paragraph 3. It has been noticed in paragraph 3 that assignment was made on 12.10.2023 whereas the application IA No.1874 of 2023 was filed in May 2023 and the resolution to replace the IRP was passed on 06.10.2023 i.e. much before the assignment of debt. We, thus, do not find any infirmity in the resolution dated 06.10.2023 on the ground urged by the Appellant before the Adjudicating Authority. 11. Learned Counsel for the Respondents has placed reliance on the judgment of this Tribunal in Company Appeal (AT) (Insolvency) No.1037 of 2022- Sumant Kumar Gupta vs. Committee of Creditors of M/s. Vallabh Textiles Company Ltd. where challenge made by the Resolution Professional who was replaced, on the ground that he was entitled for the opportunity to be heard after issuing notice was considered. This Tribunal after noticing Section 27 of the IBC laid down following in paragraphs 6 and 7:- 6. When we read Section 27(1), it clearly provides that when the CoC is of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P cost of Rs.76 lacs and odd are still pending, Adjudicating Authority ought not to have been decided IA Nos.1874 of 2023 and IA No.2860 of 2023. The Adjudicating Authority itself in the order has indicated that the Applications IA No.2591 of 2023 and Contempt Case No.07 of 2023 which are pending adjudication were to be heard on 26.10.2023 on which date Applications were adjourned. It has been submitted by the Counsel for the Respondents that IA No.2591 of 2023 and Contempt Case No.7 of 2023 also been heard by the Adjudicating Authority and order has been reserved on 26.10.2023. 13. Learned Counsel for the Appellant has further made allegation on CoC for non-cooperation. From the facts brought on record, it does appear that Appellant even could not complete the first CoC meeting till April, 2023 and in spite of the order dated 12.05.2023 did not convene the meeting including the agenda of replacement of the IRP which meeting could be convened only after the order dated 27.09.2023. We fail to see that how the CoC can be charged with non-cooperation. As per the scheme of the IBC, the CIRP has to be under control and supervision of the CoC and various actions of the IRP/RP require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assured, or by the assured represented by the insurer as subrogee- cum-attorney, or by the assured and the insurer as co-plaintiffs or co- complainants. (v) Where the assured executed a subrogation-cum- assignment in favour of the insurer (as contrasted from a subrogation), the assured is left with no right or interest. Consequently, the assured will no longer be entitled to sue the wrongdoer on its own account and for its own benefit. But as the instrument is a subrogation- cum-assignment, and not a mere assignment. the insurer has the choice of suing in its own name, or in the name of the assured, if the instrument so provides. The insured becomes entitled to the entire amount recovered from the wrong-doer, that is, not only the amount that the insured had paid to the assured, but also any amount received in excess of what was paid by it to the assured, if the instrument so provides 16. The above judgment relied was a case where the Hon ble Supreme Court was considering the issue of locus standi of subrogee to file complaint. The Hon ble Supreme Court in the above case has laid down the principle relating to subrogation in paragraph 35 as noted above. The Hon ble S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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