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TMI Blog2019 (11) TMI 1642X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Application disposed off. - CA No. 910/2019 In CP (IB) No.121/Chd/Pb/2018 - - - Dated:- 18-11-2019 - MR. AJAY KUMAR VATSAVAY AND MR. PRADEEP R.SETHI, JJ. Present: Mr. Mahesh Chandra Purohit, Applicant/Resolution Professional, in person ORDER Ajay Kumar Vatsavayi, J. This instant application i.e. CA No.910/2019 has been filed by the Applicant-Resolution Professional of M/s Sahil International Pvt. Ltd., under Section 33 and 34 of the Insolvency and Bankruptcy Code, 2016 (hereinafter to be referred as the Code ), seeking liquidation of the corporate debtor based on the 6th Meeting of the Committee of Creditors ( COC ), held on 15.10.2019. 2. On perusal of the documents, it is evident that CP (IB) No.121/Chd/Pb/2018 ( CP ) was admitted and moratorium was declared and Mr. Mahesh Bansal, was appointed as the Interim Resolution Professional, by order dated 21.01.2019. On an application filed under Section 22 of the Code, vide order dated 29.03.2019 passed by this Tribunal, Mr. Mahesh Bansa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess period or the maximum period permitted for completion of the corporate insolvency resolution process under section 12 or the fast track corporate insolvency resolution process under section 56, as the case may be, does not receive a resolution plan under sub-section (6) of section 30; or (b) rejects the resolution plan under section 31 for the non-compliance of the requirements 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 creditors 1 [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-clauses (i), (ii) and (iii) of clause (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 34 of the Code reads as under:- 34. Appointment of liquidator and fee to be paid. (1) Where the Adjudicating Authority passes an order for liquidation of the corporate debtor under section 33, the resolution professional appointed for the corporate insolvency resolution process under [Chapter II shall, subject to submission of a written consent by the resolution professional to the Adjudicatory Authority in specified form,] shall act as the liquidator for the purposes of liquidation unless replaced by the Adjudicating Authority under subsection (4). (2) On the appointment of a liquidator under this section, all powers of the board of directors, key managerial personnel and the partners of the corporate debtor, as the case may be, shall cease to have effect and shall be vested in the liquidator. (3) The personnel of the corporate debtor shall extend all assistance and cooperation to the liquidator as may be required by him in managing the affairs of the corporate debtor and provisions of section 19 shall apply in relation to voluntary liquidation process as they apply in relation to liquidation process with the substitution of references to the liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 34 says that the Board shall propose the name of another insolvency professional along with written consent from the insolvency professional in the specified form within ten days of the direction issued by the Adjudicating Authority under sub-section (5). 14. Sub-section (7) of Section 34 says that the Adjudicating Authority shall, on receipt of the proposal of the Board for the appointment of an insolvency professional as liquidator, by an order appoint such insolvency professional as liquidator. 15. In this regard a letter bearing File No.25/02/2019-NCLT dated 28.06.2019 has been received from the National Company Law Tribunal, New Delhi forwarding therewith a copy of letter No. IBBI/IP/EMP/2018/02/ dated 24.06.2019 along with the guidelines and the panel of resolution professionals approved for NCLT, Chandigarh Bench for appointment as IRP or Liquidator. The panel is valid for six months from 01.07.2019 to 31.12.2019. We select Mr. Harvinder Kumar Jatana appearing at Serial No.92 of the panel to be appointed as Liquidator. 16. The Law Research Associate of this Tribunal has checked the credentials of Mr. Harvinder Kumar Jatana and there is nothing adverse against him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le as a going concern, it shall identify and group the assets and liabilities, which according to its commercial considerations, ought to be sold as a going concern under clause (e) or clause (f) of regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. (3) The resolution professional shall submit the recommendation of the committee under sub-regulations (1) and (2) to the Adjudicating Authority while filing the approval or decision of the committee under section 30 or 33, as the case may be. . 39D . Fee of the liquidator While approving a resolution plan under section 30 or deciding to liquidate the corporate debtor under section 33, the committee may, in consultation with the resolution professional, fix the fee payable to the liquidator, if an order for liquidation is passed under section 33, for (a) the period, if any, used for compromise or arrangement under section 230 of the Companies Act, 2013; (b) the period, if any, used for sale under clauses (e) and (f) of regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016; and (c) the balance period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et the liquidation costs, as estimated in subregulation (1). (3) Where the estimated value of the liquid assets under subregulation (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. The RP further explained the relevant provisions of the IBC, 2016 and the regulations to the members of the COC. The RP also suggested various expenses necessarily and likely to be incurred during the liquidation process. The COC was requested to make an estimate of liquidation costs and value of liquid assets and make a plan providing for contribution for meeting the difference between the two in the event an order of liquidation is passed by the Adjudicating Authority under section 33 of IBC, 2016 pursuant to filing of liquidation application by RP to AA. The COC, however, could not estimate the liquidation cost and the difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x the fee payable to the liquidator, if an order for liquidation is passed under Section 33, for (a) the period, if any, used for compromise or arrangement under section 230 of the Companies Act, 2013; (b) the period, if any, used for sale under clauses (e) and (f) of regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016; and (c) the balance period of liquidation. The RP further explained the relevant provisions of the IBC, 2016 and the regulations to the members of the COC. The COC after discussions decided not to fix any fee payable to the liquidator. 20. It is also useful to note the corresponding insertions/substitutions made to the relevant Regulations under Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 and the same are as under:- Regulation 2(ea) [(ea) liquidation cost under clause (16) of section 5 means- (i) fee payable to the liquidator under regulation 4; (ii) remuneration payable by the liquidator under sub-regulation (1) of regulation 7; (iii) costs incurred by the liquidator under sub-regulation (2) of regulation 24; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 200 10 (2) The contributions made under the plan approved under sub-regulation (3) of regulation 39B of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 or contributions made under sub-regulation (1), as the case may be, shall be deposited in a designated escrow account to be opened and maintained in a scheduled bank, within seven days of the passing of the liquidation order. (3) The amount contributed under sub-regulation (2) shall be repayable with interest at bank rate referred to in section 49 of the Reserve Bank of India Act, 1934 (2 of 1934) as part of liquidation cost. Regulation 2B 2B. Compromise or arrangement. (1) Where a compromise or arrangement is proposed under section 230 of the Companies Act, 2013 (18 of 2013), it shall be completed within ninety days of the order of liquidation under sub-sections (1) and (4) of section 33. (2) The time taken on compromise or arrangement, not exceeding ninety days, shall not be included in the liquidation period. (3) Any cost incurred by the liquidator in relation to compr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.47 On the next 50 crore 0.63 0.48 0.25 On further sums distributed 0.13 0.10 0.05 (3) Where the fee is payable under clause (b) of sub-regulation (2), the liquidator shall be entitled to receive half of the fee payable on realisation only after such realised amount is distributed. Clarification: Regulation 4 of these regulations, as it stood before the commencement of the Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment) Regulations, 2019 shall continue to be applicable in relation to the liquidation processes already commenced before the coming into force of the said amendment Regulations.] 21. It is submitted that compliance of these regulations was made by the Committee of Creditors in the 6th Meeting held on 15.10.2019. It was thereby pleaded that the requirements of Regulation 39B, 39C and 39D of the CIRP Regulation 2016 are satisfied in the present case. 22. In the circumstances and in view of the compliances made, we are satisfied that the corporate debtor-company is requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation 12(3) as under:- (a) In one English and one regional language newspaper with wide circulation at the location of the registered office and principal office, if any, of the corporate debtor and any other location where in the opinion of the liquidator, the corporate debtor conducts material business operations; (b) on the website, if any, of the corporate debtor; and (c) on the website, if any, designated by the Board for this purpose. 26. In accordance with Regulation 13 of the 2016 Regulations, the Liquidator shall file his preliminary report within 75 days and to file regular progress reports as per Rule 15 of the 2016 Regulations every fortnightly thereafter. 27. It is clarified that the Financial Creditors are not debarred from having recourse to enforce the personal guarantees and to take proper steps in this regard. 28. The Resolution Professional shall take into his possession the assets of the Corporate Debtor. 29. Thus, CA No.726/2019 stands disposed of. Copy of this order be supplied to the Applicant/Resolution Professional as well as to the Registrar of Companies, Punjab and Chandigarh. The Registry is also directed to send a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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