2021 (8) TMI 623 - Tri - Insolvency and Bankruptcy

Seeking to issue direction regarding Consideration of Expression of Interest/Resolution Plan by the RP and COC - seeking directions to the RP to call for meeting of Committee of Creditors - seeking exclude the litigation period in view of proviso 12(3) of I B Code - HELD THAT - In this matter, the CIRP was initiated on 25.07.2018 and the final list of resolution applicants was notified on 16.11.2018 and it is further seen that the last date for submission of the Resolution Plan was 06.12.2018. Under Section 33 of the IBC, an Adjudicating Authority is vested with the power to pass the liquidation order. Whereas under Section 34 of the IBC, 2016, the Adjudicating Authority is empowered to appoint the Liquidator - the application filed by the Resolution Professional for liquidation under Section 33 of the IBC, 2016 has already been allowed. Vide that Order, this Adjudicating Authority held that The assets of the Corporate Debtor be put for liquidation as no resolution plan has been received and 270 days are also over. The matter is pending only for appointment of the RP as a liquidator as no decision has been taken by the CoC in this respect. Whenever the Adjudicating Authority pass an order for liquidation of the corporate debtor under section 33, the Resolution Professional appointed for the corporate insolvency resolution process under Chapter II shall, subject to submission of a written consent by the Resolution Professional to the Adjudicatory Authority in specified form, act as the liquidator for the purposes of liquidation unless replaced by the Adjudicating Authority under sub-section (4) Section 34 of IBC 2016. Thus, so far as the liquidation order under Section 33(1) of the IBC, 2016 is concerned, the first part of the order dated 14.06.2019 shows that the order of liquidation was passed on two grounds i.e. no resolution plan was received and the period of CIRP was already over. Hence, in view of Section 34(1) of the IBC, 2016, unless the Resolution Professional is replaced under Sub-section 4 of Section 34 of IBC, 2016, he shall continue to act as Liquidator - It is also the admitted position of law that there is no power for review of order under the IBC and once the liquidation order is passed by this Adjudicating Authority on 14.06.2019, there is no scope to recall. The subsequent order dated 04.07.2019 cannot be read as an order of recall of the order of liquidation, rather it can be treated as an order which deferred the matter that was for consideration i.e., confirmation of the liquidator under Section 34(4) of the IBC, 2016 only. There are no force in the contention of the Applicant and no reason to give any direction to the applicant or the COC in respect of the Expression of Interest/Resolution Plan of Resolution Applicant M/s. Hindustan Aqua Private Limited received by the Resolution Professional - application dismissed.

Summary

Issues Involved:
1. Consideration of Expression of Interest/Resolution Plan of M/s. Hindustan Aqua Private Limited.
2. Extension of CIRP period by excluding litigation period.
3. Initiation of liquidation proceedings.

Issue-wise Detailed Analysis:

1. Consideration of Expression of Interest/Resolution Plan of M/s. Hindustan Aqua Private Limited:
The Resolution Professional (RP) filed an application seeking directions on whether the Expression of Interest (EOI)/Resolution Plan submitted by M/s. Hindustan Aqua Private Limited should be considered. The RP had previously invited EOIs, which resulted in only one resolution plan from the promoters of the Corporate Debtor, who were subsequently disqualified under Section 29A of the Insolvency & Bankruptcy Code (IBC). The RP received an unsolicited EOI and Resolution Plan from M/s. Hindustan Aqua Private Limited after the timelines for submission had expired. The RP declined the EOI citing the expired timelines and ongoing proceedings under Section 33 of the IBC. The Tribunal noted that the liquidation order had already been passed on 14.06.2019 due to the absence of a resolution plan and the expiry of the CIRP period. The Tribunal found no merit in considering the unsolicited EOI/Resolution Plan at this stage and rejected the prayer to consider it.

2. Extension of CIRP period by excluding litigation period:
The RP sought an extension of the CIRP period by excluding the litigation period, as allowed under the amended provisions of the IBC. The Tribunal referenced the Supreme Court's judgment in the Committee of Creditors of Essar Steel v. Satish Kumar Gupta, which held that the timelines prescribed by Section 12 are not mandatory and can be extended under specific conditions. However, the Tribunal held that since the liquidation order had already been passed on 14.06.2019, there was no scope for extending the CIRP period. The Tribunal emphasized that the liquidation order was final and could not be reviewed or recalled.

3. Initiation of liquidation proceedings:
The Tribunal examined the provisions of Sections 33 and 34 of the IBC, which govern the initiation of liquidation and the appointment of a liquidator. The Tribunal noted that the liquidation order was passed on 14.06.2019 due to the absence of a resolution plan and the expiry of the CIRP period. The RP had proposed his own name as the liquidator, and the Tribunal had deferred the appointment of the liquidator to the next hearing. The Tribunal clarified that the subsequent order dated 04.07.2019 did not recall the liquidation order but deferred the confirmation of the liquidator's appointment. The Tribunal concluded that the RP would continue to act as the liquidator unless replaced by the Adjudicating Authority under Section 34(4) of the IBC. Therefore, the Tribunal found no reason to direct the RP or the Committee of Creditors (CoC) regarding the consideration of the EOI/Resolution Plan from M/s. Hindustan Aqua Private Limited.

Conclusion:
The Tribunal dismissed the application filed by the RP, rejecting the prayer to consider the unsolicited EOI/Resolution Plan of M/s. Hindustan Aqua Private Limited and upheld the liquidation order passed on 14.06.2019. The Tribunal emphasized that there was no scope for extending the CIRP period or recalling the liquidation order.