P K Saikia, Member - (1.) Mr V.K. Kothari, (in short, IRP) is present before this Bench in terms of the order passed on 07.12.2017. For ready reference, said order is reproduced below: "1. Seen the Registry's note dated 30-11-2017. For ready reference Registry's note is reproduced below: "30.11.2017 Hon'ble Member (Judicial) By E.mail letter dtd. 27.11.2017, Sri V. K. Kothari (Interim Resolution Professional Assam Company India Ltd. has sent copy of the report certifying constitution of Committee of Creditors in the matter of Assam Company India Ltd. Corporate Debtor) in Dy. No.529 of 2017. Table 'A' (flag 'A') is the list of Financial Creditors as on 14.11.2017 who are 12 in total. Table 'B' (flag 'B') is the Committee of Creditors with respective voting percentage who are '12' in total as on 14.11.2017. As per S. 22 of IBC, the first meeting of the creditors shall be held within 7 days of the constitution of creditors. No further report has reached. Laid for favour of kind perusal." "2. The said note was prepared on the basis of the letter dated 27-11-2017 received from Shri V. K. Kothari, IRP. For ready reference, the letter is reproduced below: "in the matter of Diary Number 529 of 2017 Srei Infrastructure (P) Ltd. ... Financial Creditor vs. Assam Company India Ltd. ... Corporate Debtor This is with reference to the order of the Hon'ble National Company Law Tribunal, Guwahati Bench dated 26.10.2017 ("Order") intimated to the undersigned via email dated 31.10.2017, whereby the Hon'ble Bench has admitted the Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 ("Code") , initiating insolvency proceedings of Assam Company India Limited ("Corporate Debtor") and has appointed the undersigned as the IRP. Order can be viewed at:http:/nclt.gov.in/interim_orders/Guwahati/26.10.2017/l . pdf As per the requirement of regulation 17(1) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 ("CRIP Regulations") which stipulated that the interim resolution professional shall file a report certifying constitution of the committee of creditors to the Adjudication Authority on or before the expiry of 30 (Thirty) days from the date of his appointment, please find enclosed herewith the report certifying constitution of committee of creditors of the Corporate Debtor for your record. Hard copy of the report shall reach you shortly. Vinod Kumar Kothari Address: 1006-1009, Krishna Building, 224 AJC Bose Road, Kolkata - 700 017 E-mail:resolution @vinodkothari.com Registration No.:IBBI/IPA-002/IP-N00019/2016-l7/10033" "3. Also seen Registry's note dated 05-12-2017. Registry's note dated 05-12-2017 is reproduced below: "05/12/2017 Hon'ble Member (Judicial) By email letter dtd 4th December 2017, Sri V. K. Kothari the Interim Resolution Professional has sent the2nd report of the I.R.P. in the matter of Assam Company India Ltd. Dy.No.529 of 2017. As per report the 1st meeting of the Committee of Creditors was convened on 28th Nov/2017. Neither the appointment of IRP asR-P, nor replacement of I.R.P. could take place due to insufficient vote. Accordingly the I.R.P. requests the Hon'ble Bench to fix a short date for hearing. Laid for favour of kind perusal." "The said note was prepared on the basis of report dated 04-12-2017 from Vinod Kothari, IRP. For ready reference, the letter dated 04-12-2017 is also reproduced below: "To National Company Law Tribunal Guwahati Bench Dear Sir, With reference to the captioned subject, please find attached herewith Second Report of the IRP in the matter of Assam Company India Limited. The Hon'ble Bench is hereby notified that as per requirement of section 14 of Insolvency and Bankruptcy Code, 2016 ('Code 2016') and regulation 17 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016, first meeting of Committee of Creditors (as constituted of IRP) was duly convened on 28th November, 2017. It is hereby informed that as per the requirement of section 22 of the Code, 2016, the agenda for appointment of IRP as RP was placed before the Committee, however, the same not being able to get 75% votes cast in favour, was lost. Even the proposal to replace the existing IRP failed to get requisite majority. Kindly refer the attached Report for details. Kindly note that the Company in present case being a tea producing company, belongs to a sensitive, labour intensive sector, employing nearly 25000 workers and extremely important for the economy and social fabric of North-Eastern Region. In view of this, appropriate directions are required from the Hon'ble Bench. Accordingly, the Interim Resolution Professional hereby requests the Hon'ble Bench to kindly fix a short date for hearing. Vinod Kumar Kothari Interim Resolution Professional Assam Company India Limited Address: 1006-1009, Krishna Building, 224 AJC Bose Road, Kolkata - 700 017 E-maii.resolution @vinodkothari.com Registration No.:IBBI/IPA-002/IP-N00019/2016-l7/10033" "5. In this connection, I find it necessary to visit the provision of Section 22 of Insolvency and Bankruptcy Code, 2016, which deals with the matter relating to appointment of Resolution Professional. For ready reference, the said provision is also reproduced below: "22. (1) The first meeting of the committee of creditors shall be held within seven days of the constitution of the committee of creditors. (2) The committee of creditors, may, in the first meeting, by a majority vote of not less than seventy-five per cent, of the voting share of the financial 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, 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. (4) The Adjudicating Authority shall forward the name of the resolution professional proposed under clause (b) of sub-section (3) to the Board for its confirmation and shall make such appointment after confirmation by the Board. (5) Where the Board does not confirm the name of the proposed resolution professional within ten days of the receipt of the name of the proposed resolution professional, the Adjudicating Authority shall, by order, direct the interim resolution professional to continue to function as the resolution professional until such time as the Board confirms the appointment of the proposed resolution professional." 6. It is, thus, apparent that the Committee of Creditors (in short "COC") may, in its first meeting, by majority vote not less than 75% of voting share of the financial creditors, either resolved to appoint IRP as Resolution Professional or replace the IRP by another Resolution Professional. 7. A perusal of the Code and the Rules framed thereunder, makes it clear that the Insolvency and Bankruptcy Code, 2016, provides a mechanism for resolution of the disputes thereunder in a time bound manner. Therefore, the Committee of Creditors cannot be allowed to dilly dally in a matter as important as appointment of Resolution Professional. 8. It is seen from the report of the IPR that the Corporate Debtor, being a tea producing company, belongs to a sensitive labour sector with more than 25,000 workers in its pay roll playing extremely important in shaping the economy and economic health of a large section of the society. In such a scenario, the Registry is directed to list the matter tomorrow for necessary order. 9. The IRP be directed to remain present tomorrow for taking further necessary action. 10. Let the report of the IRP dated 04-12-2017 in Diary No.529 of 2017, be admitted as Interlocutory Application. 11. List the matter tomorrow on 08th December, 2017."
(2.) Mr. Kothari, IRP, submits that the Committee of Creditors in its meeting held on 28.11.2017, amongst other things, had discussed about (1) the proposal for ascertainment of voting rights of Financial Creditors, so proposed by IRP, (2) the proposal seeking ratification of expenses for the IRP process and (3) proposal for confirmation of appointment of IRP as RP.
(3.) While the proposal regarding the ascertainment of voting rights of Financial Creditors as submitted by the IRP was not disturbed, the proposal regarding ratification of expenses of/for the IRP was also ratified. However, the Financial Creditors could not ratify the appointment of IRP as RP.;