2020 (2) TMI 634 - Tri - Insolvency and Bankruptcy

Maintainability of application - Initiation of Liquidation Proceedings - liquidation of Corporate debtor - HELD THAT - This Tribunal in the circumstances of the case, taking into consideration the provisions of law as well as on facts, is constrained to order for liquidation of the Corporate Debtor and amidst such background the Corporate Debtor stands liquidated with the incidence of liquidation to follow, on and from the date of this order in terms of the provisions of the IBC, 2016 and more particularly as given in Chapter - III of IBC, 2016 and also in terms of Insolvency and Bankruptcy (Liquidation Process) Regulations, 2017. Application cannot be admitted - Moratorium ceased to have effect.

Summary

Issues involved:
Initiation of liquidation proceedings under Section 33(2) of the Insolvency and Bankruptcy Code, 2016 (IBC, 2016) against a Corporate Debtor due to lack of financial information and cooperation from erstwhile directors.

Detailed Analysis:

1. Application for Liquidation Proceedings:
The Resolution Professional (RP) filed an application under Section 33(2) of the IBC, 2016, seeking initiation of liquidation proceedings against the Corporate Debtor. This application was based on the inability to ascertain the financial position of the Corporate Debtor due to the destruction of financial documents in a fire at the office premises. Despite efforts, no relevant information could be obtained, leading to a standstill in the Corporate Insolvency Resolution Process (CIRP).

2. Lack of Financial Information:
The RP faced challenges in preparing the Information Memorandum and inviting Expression of Interest (EoI) due to the unavailability of financial records. The annual financial statements had not been prepared since 2015, and the only available records indicated fraudulent activities by the Corporate Debtor and its erstwhile directors. The RP also highlighted criminal and civil suits against the directors, resulting in seized financial documents.

3. Committee of Creditors' Resolution for Liquidation:
The Committee of Creditors (CoC) unanimously resolved in the fifth meeting to proceed with the liquidation of the Corporate Debtor due to the inability to ascertain financial statements, assets, or the whereabouts of the directors. The RP's efforts to trace relevant information were unsuccessful, leading to the decision for liquidation.

4. Order for Liquidation:
Considering the circumstances and provisions of the IBC, 2016, the Tribunal ordered the liquidation of the Corporate Debtor. A Liquidator was appointed, and directions were given for public announcements, communication to regulatory authorities, cessation of the Moratorium, discharge of officers and employees, and compliance with liquidation procedures and regulations.

5. Further Directions and Reporting:
The Liquidator was directed to submit a Preliminary Report within seventy-five days from the liquidation commencement date. The order served as a notice of discharge to the Corporate Debtor's officers, employees, and workmen. Additionally, necessary intimation was to be provided to regulatory authorities and compliance with fiscal regulations was mandated.

This comprehensive analysis outlines the key legal aspects and decisions made by the Tribunal regarding the initiation of liquidation proceedings against the Corporate Debtor based on the lack of financial information and cooperation from the directors.