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2022 (9) TMI 441 - AT - Insolvency and BankruptcyCIRP proceedings - validity of order of liquidation - Wither the Resolution Professional (RP) has not at all taken any sincere efforts for obtaining appropriate resolution plan - Section 33(2) of the IBC - HELD THAT - On going through the impugned order it is evident that CIRP was initiated long back on 03.09.2019. As per scheme of IBC and also statutory provisions mentioned therein, such proceeding is required to be concluded within a specified time. The impugned order quoted hereinabove reflects that even after expiry of statutory period 90 days further time was granted but no resolution plan could be approved. In such situation the RP was having no alternative than to proceed with a petition under Section 33(2) of the IBC. On bare perusal of provisions of Section 33(2) of the IBC, once Resolution Professional in compliance with the conditions mentioned in sub-section (2) with a prayer to liquidate Corporate Debtor, the Adjudicating Authority has no option but to pass an order for liquidation. The word shall in sub-section (2) has been inserted and as such on being intimated by the RP, in the present case, the COC has resolved for liquidation in terms of sub-section (2) of Section 33 and as such the Adjudicating Authority was having no option but to pass order for initiation of the liquidation proceeding. Moreover, on examination of the impugned order itself it is evident that there was complete non-cooperation by the appellants who were suspended directors of the corporate Debtor. The appeal stands dismissed without cost.
Issues Involved:
1. Initiation of Liquidation Proceedings. 2. Non-cooperation by Suspended Directors. 3. Maintainability of Appeal by Ex-Directors. Issue-wise Detailed Analysis: 1. Initiation of Liquidation Proceedings: The appeal was filed under Section 61 of the Insolvency & Bankruptcy Code, 2016 (IBC) by the ex-Directors of the Corporate Debtor against an order dated 04.01.2021 passed by the National Company Law Tribunal (NCLT), New Delhi. The NCLT had allowed the petition filed under Section 33(2) of the IBC for the initiation of liquidation proceedings against the Corporate Debtor. The operative portion of the order included appointing Mr. Nitin Narang as the Liquidator and discharging the Resolution Professional (RP), Mr. Mahesh Bansal. The order also outlined the cessation of powers of the Board of Directors and other managerial personnel, directing them to cooperate with the Liquidator. Additionally, the order mandated the issuance of a public announcement regarding the liquidation and specified that no legal proceedings could be initiated against the Corporate Debtor without prior approval from the Adjudicating Authority, except as mentioned in Section 33(6) of the IBC. 2. Non-cooperation by Suspended Directors: The NCLT had previously initiated the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor on 03.09.2019, following a petition by Punjab National Bank under Section 7 of the IBC. Despite the re-structuring of loans, the Corporate Debtor's account was declared Non-Performing Asset (NPA) on 29.07.2016. The CIRP failed to approve any resolution plans, leading the RP to file for liquidation under Section 33(2) of the IBC. The appellants argued that the RP did not make sincere efforts to obtain a resolution plan and hurriedly approached the NCLT for liquidation. However, the respondent countered that the appellants did not cooperate with the RP, failing to provide necessary information and documents, which led to the imposition of a fine of Rs. 5 lakhs on the Corporate Debtor by the NCLT. 3. Maintainability of Appeal by Ex-Directors: The respondent raised a preliminary objection regarding the maintainability of the appeal, arguing that the ex-directors were not entitled to pursue the appeal after the initiation of liquidation proceedings. According to Section 17(1)(b) of the IBC, the powers of the Board of Directors are suspended and exercised by the Interim Resolution Professional during the CIRP. Once liquidation proceedings are initiated under Section 33(2) of the IBC, the status of suspended directors ceases to exist. Section 33(7) of the IBC states that the liquidation order serves as a notice of discharge to the officers, employees, and workmen of the Corporate Debtor, except when the business continues during the liquidation process by the Liquidator. Conclusion: The NCLT's order for liquidation was based on the statutory provisions of the IBC, which mandate the liquidation of the Corporate Debtor if no resolution plan is approved within the specified period. The appellants' non-cooperation and failure to provide necessary information justified the RP's decision to file for liquidation. The appeal by the ex-directors was deemed not maintainable as their status ceased to exist after the initiation of liquidation proceedings. The NCLT's order was upheld, and the appeal was dismissed without costs.
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