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TMI Blog2019 (3) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... ator will first proceed with the sale of company’s assets wholly and thereafter, if not possible to sell the company in part and in accordance with law. The ‘Liquidator’ if initiates, will complete the process under Section 230 of the Companies Act within 90 days. For the purpose of counting the period of liquidation, the pendency of the appeal(s) preferred by the ‘Eight Finance Pvt. Ltd.’ that is from 12th July, 2018 and till date should be excluded. In the circumstances, while we are not inclined to interfere with the impugned order(s) both dated 25th June, 2018 direct the Liquidator to act in accordance with law and as observe above. - Company Appeal (AT) (Insolvency) No. 495 & 496 of 2018 - - - Dated:- 29-1-2019 - Mr S. J. Mukhopadhaya, Chairperson And Mr Bansi Lal Bhat, Member (Judicial) For The Appellant : Mr. Sumant Batra and Ms. Priyanka Anand, Advocates For The Respondents : Mr. Mehul Parti and Ms. Swati Seth, Advocates for R.P. And Mr. V. Seshagiri and Mr. Adhish Rajvanshi, Advocates for Respondent ORDER These appeals have been preferred by the management of Hindustan Dorr-Oliver Limited (Corporate Debtor) and HDO Technologies Limited (th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. We have heard the learned counsel for the parties and perused the record. The Hon ble Supreme Court in Swiss Ribbons Pvt. Ltd. Anr. vs. Union of India Ors. Writ Petition (Civil) No. 99 of 2018 by its judgment dated 25th January, 2019, observed as follows: 11. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern. [See ArcelorMittal (supra) at paragraph 83, footnote 3]. ( Emphasis added) 12. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uidator could propose a compromise or arrangement with the creditors and members as contemplated by Section 391 of the Act or any of the contributories or creditors also can come forward with such an application. 7. Section 391 of the Companies Act, 1956 has since been replaced by Section 230 of the Companies Act, 2013, which is as follows: 230. Power to compromise or make arrangements with creditors and members ( 1) Where a compromise or arrangement is proposed- ( a) between a company and its creditors or any class of them; or ( b) between a company and its members or any class of them, the Tribunal may, on the application of the company or of any creditor or member of the company, or in the case of a company which is being wound up, of the liquidator appointed under this Act or under the Insolvency and Bankruptcy Code, 2016 as the case may be, order a meeting of the creditors or class of creditors, or of the members or class of members, as the case may be, to be called, held and conducted in such manner as the Tribunal directs. Explanation. - For the purposes of this sub-section, arrangement includes a reorganisation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsite of the company, if any, and in case of a listed company, these documents shall be sent to the Securities and Exchange Board and stock exchange where the securities of the companies are listed, for placing on their website and shall also be published in newspapers in such manner as may be prescribed: Provided further that where the notice for the meeting is also issued by way of an advertisement, it shall indicate the time within which copies of the compromise or arrangement shall be made available to the concerned persons free of charge from the registered office of the company. ( 4) A notice under sub-section (3)shall provide that the persons to whom the notice is sent may vote in the meeting either themselves or through proxies or by postal ballot to the adoption of the compromise or arrangement within one month from the date of receipt of such notice: Provided that any objection to the compromise or arrangement shall be made only by persons holding not less than ten per cent. of the shareholding or having outstanding debt amounting to not less than five per cent. of the total outstanding debt as per the latest audited financial statement. ( 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions) Act, 1985 shall abate; ( e) such other matters including exit offer to dissenting shareholders, if any, as are in the opinion of the Tribunal necessary to effectively implement the terms of the compromise or arrangement: Provided that no compromise or arrangement shall be sanctioned by the Tribunal unless a certificate by the company's auditor has been filed with the Tribunal to the effect that the accounting treatment, if any, proposed in the scheme of compromise or arrangement is in conformity with the accounting standards prescribed under section 133. ( 8) The order of the Tribunal shall be filed with the Registrar by the company within a period of thirty days of the receipt of the order. ( 9) The Tribunal may dispense with calling of a meeting of creditor or class of creditors where such creditors or class of creditors, having at least ninety per cent. value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement. ( 10) No compromise or arrangement in respect of any buy-back of securities under this section shall be sanctioned by the Tribunal unless such buy-back is in accordance with the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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