PER: BENCH

1. This is an application filed by the Financial Creditor U/s 60(5) seeking for the following relief:

i. Direct the Respondents to make payments of Resolution Professional fees and expenses of Corporate Insolvency Resolution Process Rs. 38,21,022/- incurred by the Applicant according to their share proportion.

2. The gist of the Application in brief:

a. It is averred that this application is filed by the Financial Creditor namely Mr. Laxmi Kumar Rao Thota under section of Insolvency and Bankruptcy Code, 2016 read with rule 4 of the Insolvency and Bankruptcy Rules, 2016 before this Tribunal vide its order dated 28.03.2019 ordered the commencement of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor within 180 days from the date of order.

b. It is averred that this Tribunal has appointed the applicant as Interim Resolution Processional (IRP) and directed to take charge of the management of the Corporate Debtor.

c. It is averred that as per the direction in the order of this Tribunal the applicant caused Public Notice, held CoC Meeting on and when necessary during the CIRP period.

d. It is averred that in the 1^st CoC meeting one of the agenda item was to approve reimbursement of expenses incurred on the release of advertisement and the fees of Rs.1,50,000/- and was paid to the applicant to act as Interim Resolution Professional and further the fees of Rs. 1,00,000/-was agreed by the Respondents in the 1^st CoC meeting. The Copy of 1^st Minutes of CoC is annexed here as “Annexure-1”.

e. It is averred that the share of respondents as per their voting rights as given below:

f. It is averred that the applicant previously filed an IA 544/2019 in CP(IB) No. 181/7/HDB/2019 for directing the Respondent/Financial Creditor to share the expenses of the CIRP in proportion of its voting share and the same was allowed by this Tribunal vide order dated 27.11.2019 directing the respondents to pay the expenses incurred by the Resolution Professional and further the same was neglected by both the respondents on frivolous grounds and Copy of order dated 27.11.2019 was annexed here as “Annexure-2”.

g. It is averred that the respondents who approved the CIRP Expenses and fees the respondents after several remainders by the applicant through emails and order of this Tribunal has not paid any CIRP Expenses until now and the copy of mail requesting the respondents to share the expenses is annexed as “Annexure-3”.

h. It is averred that the CIRP process has completed 32 months as Resolution Professional without any remuneration and has incurred expenses from its own coffers for running the CIRP and during the CIRP the Original Company Petition was set aside by this Tribunal Vide IA No.785/2019 order dated 14.02.2022, based on this order the Respondents have neglected to pay the CIRP expenses.

i. It is averred that the Apex Court in Civil Appeal No.4065/2020 and in the matter of Alok Kaushik vs Mrs. Bhuwaneshwari Ramanathan and others have enunciated that :-

“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 sufficiently empowered under section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs.

“ We accordingly allow the appeal and set aside the impugned judgment and order of the NCLAT dated 13.10.2020. the proceedings shall accordingly stand remitted back to the NCLT for determining