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2024 (5) TMI 15 - AT - Insolvency and BankruptcyAppointment of the Appellant as the liquidator - non-compliance of Regulation 31A of the Regulations as the mandatory written consent form, as stipulated in Form AA Schedule II has not been filed before the Adjudicating Authority - appointment of Respondent No. 2 as the liquidator though it was not approved by the SCC - locus to file appeal - HELD THAT - Regulation 31A(11) of the Regulations categorically provides for a written consent prior to the filing of the application for replacement of the liquidator - It is an admitted fact that no such written consent was submitted by the Appellant to the SCC when it had voted in its favour in 28th meeting of SCC nor it was annexed with the application filed by the erstwhile liquidator for his replacement with the Appellant by the Adjudicating Authority. As per Circular no. IBBI/CIRP/023/2019 dated 14.08.2019, Form No. IP1 is regarding pre-assignment which provides that this includes consent to accept assignment of an IP as IRP/RP/Liquidator/Bankruptcy Trustee, the details of IP and the applicant, the details of the person which will undergo the process, terms of consent, terms of engagement, filing of application before AA and withdrawal before admission, etc. to be filed within three days of the relevant date - In the present case, the relevant date was the date when the alleged consent was given by the Appellant i.e. 29.08.2023 when it had sent written consent to the Adjudicating Authority and the SCC as alleged and it was incumbent upon the Appellant to have it uploaded within three days on the portal of the IBBI which is again conspicuous by its absence. Thus, in such circumstances, it is apparent that the Appellant had not given any written consent on 29.08.2023 as alleged rather no written consent has been given in terms of Regulation 31A(11) of the Regulations which is required to be given on Form AA of Schedule II of the CIRP Regulations, therefore, there is no error in the finding recorded by the Adjudicating Authority in this regard. The argument of the Appellant that if the written consent was not given then at the most it is a defect which is curable but the judgment relied upon in this regard in the case of Tek Travels Pvt. Ltd. 2021 (4) TMI 813 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI is not applicable because a written consent to act either as the IRP/RP or the liquidator is a mandatory requirement under the law which has to be obtained before the application is filed. Whether the Adjudicating Authority has committed an error in appointing the Respondent No. 2 as the liquidator though it was not approved by the SCC? - HELD THAT - In this regard, reference may be had to the decision of this Court in the case of CA. V. Venkata Sivakumar Vs IDBI Bank Limited, 2022 (12) TMI 1056 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI BENCH in which it has been held that combined reading of above case laws and provisions alongwith Section 33 and Section 34 of the Code, would make it clear that the AA which had the powers to appoint the Liquidator will also have the powers to remove the liquidator for reasons, the AA may find fit, just valid and proper . Whether the Appellant has no locus to file the appeal? - HELD THAT - The submission made by the Respondent that the Appellant has no locus to file the appeal has substance because it was only a proposed/prospective liquidator and no inherent right was there to be appointed as such, therefore, the aggrieved person, at the most could have been either the erstwhile liquidator who had filed the application for replacing him with the Appellant or the SCC who had approved the appointment of the Appellant subject to the approval of the Adjudicating Authority. There are no merit in the present appeal and the same is hereby dismissed.
Issues Involved:
1. Appointment of Liquidator 2. Compliance with Regulation 31A(11) 3. Locus Standi of Appellant Summary: Issue 1: Appointment of Liquidator This appeal is directed against the order dated 12.01.2024, passed by the Adjudicating Authority (National Company Law Tribunal, Ahmadabad Bench At Ahmadabad) partly allowing the application bearing I.A No. 1230/AHM/2023 filed in C.P. (IB)/37/AHM/2017 appointing Mavent Restructuring Services LLP (Respondent No. 2 herein) as the liquidator of the Corporate Debtor. The Adjudicating Authority rejected the request for appointment of the Appellant as the liquidator, inter alia, on the ground that there was non-compliance of Regulation 31A of the Regulations as the mandatory written consent form, as stipulated in Form AA Schedule II, had not been filed before the Adjudicating Authority. Issue 2: Compliance with Regulation 31A(11) Regulation 31A(11) of the Regulations categorically provides for a written consent prior to the filing of the application for replacement of the liquidator. It is an admitted fact that no such written consent was submitted by the Appellant to the SCC when it had voted in its favor in the 28th meeting of SCC nor it was annexed with the application filed by the erstwhile liquidator for his replacement with the Appellant by the Adjudicating Authority. The Appellant has relied on the alleged written consent to act as liquidator which is attached as Annexure A22 dated 29.08.2023, but neither it had reached the Adjudicating Authority nor to the SCC. Even, the erstwhile liquidator who has been pursuing the case of the Appellant being a partner of the Appellant, placed the said consent before the SCC or the Adjudicating Authority. Issue 3: Locus Standi of Appellant The Respondent argued that the Appellant has no locus standi to file the present appeal u/s 61 of the Code because it is not a person aggrieved as the Appellant was only proposed/prospective liquidator having no inherent right to be appointed as the liquidator. The aggrieved person, at the most, could have been either the erstwhile liquidator who had filed the application for replacing him with the Appellant or the SCC who had approved the appointment of the Appellant subject to the approval of the Adjudicating Authority. Conclusion: The Tribunal dismissed the appeal, concluding that the Appellant did not comply with the mandatory requirements of Regulation 31A(11) and had no locus standi to file the appeal. The Adjudicating Authority's decision to appoint Respondent No. 2 as the liquidator was upheld.
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