Can the removal of the IRP who had been appointed & confirmed be carried out only with concurrence of CoC – Kanakabha Ray Vs. Narayan Chandra Saha & Ors. – NCLAT New Delhi
August 18, 2020
NCLAT held that admittedly the Appellant had been in gainful employment of the ‘Financial Creditor’ for 34 years and had been dealing with the accounts of the ‘Corporate Debtor’ – a fact which the ‘Corporate Debtor’ claims not to be in know-of previously. The Appellant may not be currently in employment of the ‘Financial Creditor’ or drawing salary under it but the fact remains that on account of services rendered in past an element of loyalty is there which cannot be ignored. In view of this fact appreciation on the part of the ‘Corporate Debtor’ that the Appellant would not be fair in his working as ‘Resolution Professional’ cannot be dismissed off-hand more so when an instance of deviation was pointed out which the Appellant, when confronted, admitted as a mistake. This factual position emanates from the impugned order. This is independent of any prejudice caused actually and factually as the bias has to be viewed from the perspective of the ‘Corporate Debtor’ on the mere basis of apprehension on account of past services rendered by the Appellant with the ‘Financial Creditor’. In such circumstances, no exception can be taken to the powers of the Adjudicating Authority acting independent of the opinion of the ‘Committee of Creditors’ in this regard. This case is squarely covered by the judgment rendered by this Appellate Tribunal in ‘State Bank of India vs. M/s. Metenere Ltd. [2020] ibclaw.in 114 NCLAT’ decided on 22nd May, 2020.