Richa Infrastructure Limited engaged in the construction of roads is in default in repayment of loans due to general slowdown in construction industry. Repeated follow-up by the financial institutions with the Corporate

CS Professional · Insolvency - Law and Practice · PYQS · December 2019
Richa Infrastructure Limited engaged in the construction of roads is in default in repayment of loans due to general slowdown in construction industry. Repeated follow-up by the financial institutions with the Corporate Debtor, 'Richa Infrastructure Ltd.' for submitting its specific plan for repayment of dues did not evoke any response. One of the financial creditors filed a case against Richa Infrastructure Ltd. before the Debt Recovery Tribunal. Richa Infrastructure Ltd. had issued some cheques to some Operational Creditors. All the cheques issued to creditors were dishonored/returned by the banker due to insufficient funds in the account. Consequently, Operational Creditors issued legal notices to Richa Infrastructure Ltd, with clear intimation that if due amount is not paid within 15 days from the date of receipt of legal notice, criminal complaint shall be filed against Richa Infrastructure Ltd. under the Negotiable Instrument Act, 1881 and criminal complaints were filed. After a joint lenders meeting, all the financial institutions unanimously decided to apply under the provisions of the Insolvency and Bankruptcy Code, 2016 to the National Company Law Tribunal (NCLT) for starting the process of Insolvency Resolution. Their application was admitted by NCLT on 30th June, 2018 and orders were issued for commencement of a moratorium period of 180 days, appointment of an Interim Resolution Professional and issue of public announcement inviting claims from all concerned. After public announcement and the responses thereto, following details were brought out: (1) Financial debts due to unsecured creditors (F1) - ₹15 Crores. (2) Workmen's due for the period of 24 months preceding the liquidation commencement date (F2) - ₹25 Crores. (3) Debts due to a secured creditor who has relinquished his security (F3) - ₹30 Crores. (4) Amount due to the Central Government (F4) - ₹27 Crores. (5) Debts due to a secured creditor after the enforcement of security interest (F5) - ₹36 Crores. Insolvency Resolution Professional (IRP) approached the promoters, directors and officials of Richa Infrastructure Ltd to provide the necessary information, documents, statutory records, books of accounts to verify the claims filed by creditors. The promoters, directors and officials of Richa Infrastructure Ltd. ignored the request of Resolution Professional. M/s ANG & Associates, Chartered Accountants were the Statutory Auditors of Richa Infrastructure Ltd. They audited the accounts for the financial year end March, 2018 of Richa Infrastructure Ltd. and submitted the Annual Accounts for approval of the Board of Directors. The Resolution Professional has appointed valuers and has received the valuation reports. The Resolution Professional then started the efforts to get resolution proposals. However during the normal resolution process period of 180 days, no resolution proposal could be finalized. The Committee of Creditors decided that Resolution Professional should get the extension as per the provisions of Insolvency and Bankruptcy Code, 2016. Based on the above facts, answer the following questions: Can IRP take action against employees of the Corporate Debtor in terms of employment agreement ?

Answer & Explanation:

Section 28(1)(j) and (l) of the Insolvency and Bankruptcy Code, 2016 provides that Resolution Professional, during the Corporate Insolvency Resolution Process (CIRP), shall not make any change in the management of the corporate debtor or its subsidiary, make changes in the appointment or terms of contract of such personnel as specified by the Committee of Creditors, without prior approval of the Committee of Creditors. Thus, if action of IRP / RP has effect of change in management of corporate debtor or has the effect of making changes in appointment of such persons as may be specified by Committee of Creditors, he shall take approval of Committee of Creditors in terms of Section 28 (1)(j) and (l) of the Code. IRP may take action against an employee of corporate debtor for hindering the CIRP process if he does not provide assistance and co-operation to IRP. However, by way of abundant caution, IRP may also place the matter before Committee of Creditors before taking any action. IRP may also approach Adjudicating Authority under section 19(2) of the Code for necessary directions. The Adjudicating Authority, on receiving an application under Section 19(2) of the Code, shall by an order, direct such personnel or other person to comply with the instructions of the Resolution Professional and to co-operate with him in collection of information and management of the Corporate Debtor.

Topics: Corporate Insolvency Resolution Process (CIRP)

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