Avil Menezes Vs Ministry of Coal (NCLAT Delhi)
NCLAT Delhi held that payment of pre-CIRP dues to creditors cannot be made by Resolution Professional (RP) outside the resolution framework. Thus, no proceedings can be instituted against Corporate Debtor during CIRP to recover Annual Mine Closure Cost (AMCC) deposit which belonged to pre-CIRP period.
Facts- The present appeal filed u/s. 61 of Insolvency and Bankruptcy Code 2016 by the Appellant arises out of the Order dated 06.02.2024 passed by the Adjudicating Authority. The Appellant had filed appeal seeking direction against the Secretary, Ministry of Coal-Respondent No.1 and Coal Controller-Respondent No.2 not to withdraw the mine opening permission in respect of Marki Mangle – I Coal Block. By the impugned order, the Adjudicating Authority directed the Respondent No. 2 to withdraw the withdrawal letter of mine opening permission and also directed the Appellant to keep aside the Annual Mine Closure Cost besides directing the Appellant personally liable for disposal of the mined coal in accordance with the terms of the Mine Agreement. Aggrieved with the last two directions given to the Appellant in the impugned order, the present appeal has been preferred by the Appellant.
Conclusion- Payment of pre-CIRP dues to creditors cannot be made by RP outside the resolution framework. If Respondents are allowed to recover their AMCC dues of pre-CIRP period in full by keeping it outside CIRP process, it would be a discriminatory arrangement which has not been envisaged or contemplated under the IBC. The payment of pre-CIRP dues is not sustainable since any such payment to any creditor is not only discriminatory to other similarly situated creditors, but also dilutes the scheme of the IBC. The Respondent No. 1 & 2 are entitled to receive pre-CIRP dues as per resolution framework.
