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TMI Blog2021 (3) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... sp;The Adjudicating Authority vide order dated 20.09.2019 had admitted the application filed by Punjab National Bank (`Financial Creditor'/ `PNB') under Section 7 of the Code for initiation of Corporate Insolvency Resolution Process (`CIRP') of Corporate Debtor and as a consequence thereof appointed Mr. Satyendra Prasad Khorania as Interim Resolution Professional (`IRP'). 3. In compliance with provisions of the Code, the IRP constituted the Committee of Creditors (`CoC'). The 1st meeting of the CoC was held on 17.10.2019, wherein the CoC unanimously resolved to appoint the IRP i.e., Mr. Satyendra Prasad Khorania as Resolution Professional (`RP') of the Corporate Debtor. Copy of Minutes of the 1st CoC meeting is enclosed as Annexure-2 of the Application. 4. It is submitted that in compliance with Section 15 of the Code, the RP had initially effected publication of Form G on 01.11.2019 and invited Expression of Interest ('EOI') for submission of resolution plan for the Corporate Debtor and thereafter, since no resolution plan was received, it again effected publication of Form G on 21.12.2019 for inviting EOI. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equirements specified therein, it shall - (i) pass an order requiring the corporate debtor to be liquidated in the manner as laid down in this Chapter; (ii) issue a public announcement stating that the corporate debtor is in liquidation; and (iii) require such order to be sent to the authority with which the corporate debtor is registered. . (2) where the resolution professional at any time during the corporate insolvency resolution process but before confirmation of resolution plan, intimates the adjudicating authority of the decision of the committee of creditor approved by not less than sixty-six percent of the voting share to liquidate the corporate debtor, the Adjudicating Authority shall pass a liquidation order as referred to in sub-clause (i), (ii) and (iii) of clause (b) of Sub-Section (1)" 8. The Hon'ble National Company Law Appellate Tribunal (`NCLAT'), in Praveen Kumar Nanda Kumar Vs. VSL Securities Pvt. Ltd. in CA No. 1/2020 in CA No. 308/2000, dated 09.06.2020, observed as under: - "Likewise, the decision of the COC recommending liquidation of the corporate debtor after proper evaluation of the assets and liabilities of corporate de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r weeks." 11. The Insolvency and Bankruptcy Board of India (`IBBI') vide Notification No. IBBI/2020-21/GN/REG059 dated, 20.04.2020, inserted Regulation 47A to the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 to exclude the period of lockdown and the said regulation reads as under: - "Exclusion of period of lockdown, 47A. Subject to the provisions of the Code, the period of lockdown imposed by the Central Government in the wake of Covid- 19 outbreak shall not be counted for the purpose of computation of the timeline for any task that could not be completed due to such lockdown, in relation to any liquidation process." 12. As per Notification No. IBBI/2020-21/GN/REG059 dated 20.04.2020, the period of Lockdown is excluded for the purpose of calculating the timelines in CIR Process. Hence, after considering exclusion of lockdown period till 31.05.2020, the present application is filed within the prescribed period. In view thereof the Application under consideration is taken up under Section 33 (2). 13. Appointment of Liquidator and fee to be paid- Section 34(1) of the Code provides that where the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulations, 2016) - The CoC in its 5th meeting has unanimously resolved to sell the Corporate Debtor as a going concern, as first option, or sell the business(s) of the Corporate Debtor as a going concern, as second option, before exploring other options as per Regulations 32 & 32A of IBBI (Liquidation Process) Regulations, 2016 and Regulation 39C of CIRP Regulations, if an order of liquidation is passed by the Adjudicating Authority. 18. Fees of the Liquidator (Regulation 39D of CIRP Regulations, 2016) -In the 5th meeting of the CoC while passing a resolution for the fees of the Liquidator as per Regulation 39D of CIRP Regulations, the CoC unanimously resolved that the fee of the Liquidator shall, for- a. the period, if any, used for compromise or arrangement under Section 230 of the Companies Act, 2013; and b. the period, if any, used for sale under clauses (e) and (f) of Regulation 32 of IBBI (Liquidation Process) Regulations, 2016; be same as the fee of RP and for the period thereafter, as per Regulation 4(2)(b) of IBBI (Liquidation Process) Regulations, 2016. Further, the CoC also resolved while deciding up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of this order calling upon the stake holders to submit their claims as on liquidation commencement date and provide the last date for submission of claim which shall be 30 days from the liquidation commencement date; and (vii) In accordance with Regulation 13 of the IBBI (Liquidation Process) Regulations, 2016, the Liquidator shall file his preliminary report within 75 days and shall file regular progress reports as per Regulation 15. 20. Pending Applications, if any, and its / their effect- It is seen that following IA filed by RP before the Adjudicating Authority is pending: S. No. IA No. Section Prayer 1 IA No. 424/JPR/2019 Under Section 19 (2) of Code To direct the Suspended Directors of the Corporate Debtor and Statutory Auditor of the Corporate Debtor to provide all the documents and records and also to cooperate with the RP. Since the above stated pending IA No. 424/JPR/2019 has bearing on the issues in liquidation proceedings, it is directed to be listed along with the CP No. 205/7/JPR/2019 when the matter is next placed before this Adjudicating Authority. If so advised, the&n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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