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TMI Blog2019 (8) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. National Company Law Tribunal, Chennai Bench Appeal disposed off. - Company Appeal (AT) (Insolvency) No. 542 of 2019 - - - Dated:- 21-5-2019 - Mr S. J. Mukhopadhaya, Chairperson, Mr A. I. S. Cheema, Member (Judicial) And Mr Kanthi Narahari, Member (Technical) For The Appellant : Mr. Sanjeev Sagar and Ms. Nazia Parveen, Advocates For The Respondents : Mr. Sunder Khatri, Advocate for Liquidator ORDER This appeal has been preferred by Arun Kumar Jain, Shareholder/Director of P. K. Industries Pvt. Ltd. (Corporate Debtor) against order dated 25th March, 2019 passed by the Adjudicating Authority (National Company Law Tribunal), Bench III, New Delhi whereby in absence of any resolution plan , an order of Liquidation has been passed u/s 33 of the Insolvency and Bankruptcy Code, 2016 (for short, the I B Code ). The appeal has been preferred after delay of 11 days. Having heard the learned counsel for the parties and being satisfied with the grounds, the delay of 11 days in preferring the appeal is condoned. I.A. No. 1690 of 2019 stands disposed of. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furcated and separated from that of its promoters /those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtor s assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends. In Arcelormittal India Pvt. Ltd. vs. Satish Kumar Gupta Ors. at paragraph 83, footnote 3 is mentioned. The Hon ble Supreme Court noticed that : 3. Regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, states that the liquidator may also sell the corporate debtor as a going concern. 6. In Meghal Homes Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 company s share capital by the consolidation of shares of different classes or by the division of shares into shares of different classes, or by both of those methods. ( 2) The company or any other person, by whom an application is made under subsection (1), shall disclose to the by affidavit- ( a) all material facts relating to the company, such as the latest financial position of the company, the latest auditor s report on the accounts of the company and the pendency of any investigation or proceedings against the company; ( b) reduction of share capital of the company, if any, included in the compromise or arrangement; ( c) any scheme of corporate debt restructuring consented to by not less than seventy-five per cent. of the secured creditors in value, incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( 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) A notice under sub-section (3) along with all the documents in such form as may be prescribed shall also be sent to the Central Government, the income-tax authorities, the Reserve Bank of India, the Securities and Exchange Board, the Registrar, the respective stock exchanges, the Official Liquidator, the Competition Commission of India established under sub-section (1)of section 7 of the Competition Act, 2002, if necessary, and such other sectoral regulators or authorities which are likely to be affected by the compromise or arrangem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor 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 section 68. ( 11) Any compromise or arrangement may include takeover offer made in such manner as may be prescribed: Provided that in case of listed companies, takeover offer shall be as per the regulations framed by the Securities and Exchange Board. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncern in its totality along with the employees. 14. The last stage will be death of the Corporate Debtor by liquidation, which should be avoided. 15. Learned counsel appearing on behalf of the Appellant (Promoter) submitted that the provisions under Section 230 may not be completed within 90 days, as observed in S.C. Sekaran v. Amit Gupta Ors. (Supra). 16. It is further submitted that there will be objections by some of the creditors or members who may not allow the Tribunal to pass appropriate order under Section 230 of the Companies Act, 2013. 17. Normally, the total period for liquidation is to be completed preferably within two years. Therefore, in S.C. Sekaran v. Amit Gupta Ors. (Supra), this Appellate Tribunal allowed 90 days time to take steps under Section 230 of the Companies Act, 2013. In case, for any reason the liquidation process under Section 230 takes more time, it is open to the Adjudicating Authority (Tribunal) to extend the period if there is a chance of approval of arrangement of the scheme. 18. During proceeding under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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