9911796707
TMI Blog2019 (8) TMI 1600X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code declaration moratorium. As a consequential direction this bench also appointed Mr. Suresh Saluja as the Interim Resolution Professional (hereinafter called "IRP"). 3. According to the Applicant, on 21.12.2018 he received a letter from the IRP, who informed him about the above Company petition. Vide his letter the IRP further stated that the Applicant herein is allegedly in illegal occupation of a Shed owned by the Petitioner viz. Shed bearing No. D3-3 at Honda Industrial Estate, Goa, and called upon the Applicant to handover possession of the said Shed to the IRP by removing Applicant's movables from the said Shed. Applicant was called upon to comply with direction of the IRP within 24 hours of the receipt of the said letter. 4. The Applicant submits that he is not in illegal occupation of the said Shed and has been occupying the same under an Agreement dated 28th January, 1997 entered into the between the Petitioner and Applicant. It is further contended that the Applicant is an erstwhile employee of the Petitioner who was engaged in the business of manufacturing spare parts of automobiles. Applicant was an employee of the Petitioner from 1982 to January 1993, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Applicant in Goa. 11. The Resolution Professional further argues that since he has been appointed as the Interim Resolution Professional by this court, it is his duty to take control and custody of any asset over which the Corporate Debtor has an ownership right including assets which may or may not be in the possession of the Corporate Debtor. 12. The Resolution Professional also argues right of the Applicant claiming lien on the Shed is pending before Civil Court and there is no interim order therein. Therefore, as per the Resolution Professional the same cannot prejudice the right of Resolution Professional under the provisions of the code, and has further prayed that he may be allowed to take possession of the said Shed. Findings: 13. At the outset it is important that we understand relevant portion of the Section 18 of the code which refers to the Interim Resolution Professional, which is as follows:- "18. Duties of interim resolution professional. - (1) The interim resolution professional shall perform the following duties, namely: - (a) collect all information relating to the assets, finances and operations of the corporate debtor for determining the financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portant to note that the suit filed by the Applicant is merely to decide possession and seeking mesne profits. The Applicant has not disputed the ownership neither in his application nor in the notice sent by him as mentioned above. 15. Therefore, in accordance with the code, since the Corporate Debtor has been authorised and empowered to take possession of the said Shed, the same must be granted to the Resolution Professional. Although, we would like to make it clear that this in manner would affect the merits of the Special suit which is still pending before the Special Civil Judge Goa. 16. It is pertinent to note here that, the moot point behind the Resolution Professional seeking possession of the Shed is to help the company. Therefore, if the arguments of the Applicant are given any weightage, and the Shed is not given in the possession of the Resolution Professional the same would cause heavy prejudice to the Petitioner and defeat the purpose of the Code. 17. Although, herein we would like to make it clear that the argument of the Resolution Professional that the Shed is illegal possession of the Applicant cannot be taken into account as a valid one, because, it is not wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil Court filed by the Applicant herein. e) In my view, the object of 18 (1) (f) (6) is to see that the property under dispute is included in the Information memorandum, so that the prospective Resolution Applicants will take a call after taking into consideration the property under litigation and considering this fact he will submit the Resolution Plan. Object of this provision is never to dispossess anyone who is in occupation of the property belonging to the Corporate Debtor. It is beneficial to refer section 29 of the Code here where it is stipulated that the RP shall prepare an Information Memorandum which should contain relevant information pertaining to the Corporate Debtor. The explanation to section 29 provides that : "Explanation. -For the purposes of this section, "relevant information" means the information required by the resolution applicant to make the resolution plan for the corporate debtor, which shall include the financial position of the corporate debtor, all information related to disputes by or against the corporate debtor and any other matter pertaining to the corporate debtor as may be specified." The above explanation categorically says that informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Resolution Professional submits that in the sixth CoC meeting held on 23.05.2018, the Indian Overseas Bank, members of CoC having 100% voting rights passed a resolution for liquidating the company in view of the fact that no Resolution Plan was received. Accordingly, the Resolution Professional filed this application for liquidation of the Company as provided u/s 33 of the Insolvency & Bankruptcy Code, 2016 (Code). 25. On hearing the submissions of the Applicant and on reading the Application and the documents enclosed therein, for the RP has complied with the procedure laid under the Code read with Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (Regulations), for the valuation report filed by the valuer showing nil value has not been disputed by the CoC, on verification, we are of the view that this case is fit to pass liquidation order under sub-section 2 of section 33 of the Code as no resolution plan has been submitted before the Adjudicating Authority by the Resolution Professional, and accordingly, this Bench orders; a. that the Corporate Debtor to be liquidated in the manner as laid down in the Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
