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TMI Blog2020 (4) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant has not given his consent to act as a Liquidator and the AA may appoint a Liquidator for Isolux in terms of section 34 (4) (c) of the Code. On the failure of the RP Shri Vikram Kumar to submit the written consent, the AA is empowered under section 34 (4) of the Code to replace the RP by following the procedure provided for in section 34 (5) to (7) of the Code. As regards Regulation 39B, the CoC did not approve any plan for providing contribution for meeting the difference between the excess of estimated liquidation costs over the liquid assets and was of the view that the estimated liquidation costs can be approved quarterly in the stakeholder consultation committee to be constituted as per Regulation 31A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (Liquidation Process Regulations, 2016). The plan under Regulation 39B (3) of the CIRP Regulations, 2016 has not been approved by the CoC - After taking into consideration the discussion by the CoC in the 14th meeting held on 08-11-2019, the Liquidator may take necessary action under Regulation 2A of the Liquidation Process Regulations, 2016. It is directed that all the direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the AA for exclusion of time for computing the CIRP. However, the application was rejected by the AA vide order dated 07-11-2019 and liberty was granted to the applicant to convene a meeting of the CoC to decide the liquidation of Isolux. 6. It is submitted that in the 14th meeting of the CoC convened on 08-11-2019, the applicant apprised the CoC that no resolution plan has been received till date. The CoC thereupon was of the unanimous view that Isolux had to be liquidated as per section 33 (1) (a) of the Code and no resolution is required to be approved/passed by the CoC for liquidation of Isolux and the RP should file an application for liquidation of Isolux at the earliest. 7. It is stated that in the 14th meeting of the CoC held on 08-11-2019, Agenda Item No. 7 related to appointing a Liquidator and approving the fees to be paid to the Liquidator. It is submitted that the resolution did not secure requisite voting of 51% and was therefore, disapproved and in view of Agenda Item No. 7, not being approved by the CoC, the applicant has not given his consent to act as a Liquidator and the AA may appoint Liquidator for Isolux in terms of section 34 (4) (c) of the Code. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten consent by the RP to the AA in specified Form, shall act as the Liquidator for the purposes of liquidation unless replaced by the AA under section 34 (4) of the Code. The provisions of Section 34 (4) of the Code inter alia states that the AA shall by order replace the RP, if the RP fails to submit the written consent under section 34 (1) of the Code. The RP Shri Vikram Kumar has not submitted his written consent under section 34 (1) of the Code. As already noted above, it is stated in the instant application that since Agenda Item No. 7 relating to appointing a Liquidator and approving the fees to be paid to the Liquidator was not approved by the CoC in its 14th meeting held on 08-11-2019, the applicant has not given his consent to act as a Liquidator and the AA may appoint a Liquidator for Isolux in terms of section 34 (4) (c) of the Code. On the failure of the RP Shri Vikram Kumar to submit the written consent, the AA is empowered under section 34 (4) of the Code to replace the RP by following the procedure provided for in section 34 (5) to (7) of the Code. 13. Under sub-section (5) of section 34 of the Code, the Adjudicating Authority may direct the Board to propose th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the estimated value of the liquid assets under sub-regulation (2) is less than the estimated liquidation costs under sub-regulation (1), the committee shall approve a plan providing for contribution for meeting the difference between the two. (4) The resolution professional shall submit the plan approved under sub-regulation (3) to the Adjudicating Authority while filing the approval or decision of the committee under section 30 or 33, as the case may be. Explanation.-For the purposes of this regulation, 'liquidation costs' shall have the same meaning as assigned to it in clause (s) of sub-regulation (1) of regulation (2) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. 39C. Assessment of sale as a going concern. (1) While approving a resolution plan under section 30 or deciding to liquidate the corporate debtor under section 33, the committee may recommend that the liquidator may first explore sale of the corporate debtor as a going concern under clause (e) of regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 or sale of the business of the corporate debtor as a goin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussion by the CoC in the 14th meeting held on 08-11-2019, the Liquidator may take necessary action under Regulation 2A of the Liquidation Process Regulations, 2016. 21. With reference to Regulation 39C of the CIRP Regulations, 2016, the CoC in the 14th meeting held on 08-11-2019, has approved the sale of business of Isolux i.e. EPC contract awarded by NHAI to Isolux for the construction of the four laning of Hassan to Maranahally. Section of NH 75 in the State of Karnataka as a going concern in liquidation. 22. The appointment of Liquidator as well as fees to be paid to the Liquidator were not approved by the CoC in its 14th meeting held on 08-11-2019. Therefore, the Liquidator's fee is to be paid in accordance with Regulation 4 (2) and 4 (3) of the Liquidation Process Regulations, 2016. 23. It is directed that all the directions/requirements and provisions of Chapter III of the Code and Liquidation Process Regulations, 2016 shall be strictly complied with. Some of the directions are as under:- (i) That as per Section 33(5) of the Code and subject to section 52 of the Code, no suit or other legal proceedings shall be instituted against the corporate debtor; Prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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