9911796707
TMI Blog2021 (8) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Adjudicating Authority be pleased to give directions to the RP to call for meeting of Committee of Creditors for this purpose and allow 60 days' time to the RP/COC for necessary proceedings. c. Alternatively, the Adjudicating Authority may exclude the litigation period from 16.05.2019 in view of proviso 12(3) of I & B Code (Amended act) 2019 dated 06.08.2019 for 60 days so that Committee of Creditors may take appropriate decision in the matter and conclude the CIRP under the proviso. d. and pass such other as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case. 2. The brief facts, as averred by the applicant, leading to filing of the instant application are as follows: i. That the CIRP was initiated against the Corporate Debtor vide order dt. 25.07.2018 and the applicant herein was appointed as the Interim Resolution Professional. Subsequently, the Applicant was confirmed as the Resolution Professional ("RP"). The initial 180 days period of CIRP expired on 20.01.2019, which was extended by a further period of 90 days up to 20.04.2019 vide order dt. 15.01.2019. Thereafter, a period of 41 days was further excluded fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rification received in the matter. 17. 20th April, 2019 COC with majority vote of 72.88% approved the refection of the Resolution Applicant/Promoters under 9A disability in its 12th meeting, decision of the COC shared with the Promoter cum Resolution Applicant. 18. 26th April, 2019 On Approval of COC, a fresh Form G published by extending the last date of EOI to 26th April, 2019. One EOI received thereafter however no Resolution Plan received till last date of receipt of Resolution Plan or date of expiry of CIRP. 19. 16th May, 2019 I.A. 607/2019 filed by Suspended Board of Directors cum RA for declaring their eligibility under section 29A against the decision of the Committee of Creditors. 20. 27th May, 2019 14th meeting of the COC without passing any resolution of liquidation and but majority decision as "Lot Hon'ble Tribunal to decide the liquidation proceedings in accordance with section 33(1)(o) of the code." 21. 31st May, 2019 Last date of the CIRP after all extension and exclusions. 22. 14th June, 2019 I.A./CA No. 731 filed by Resolution Professional u/s. 33 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the no decision taken by the CoC, the application of liquidation bearing C.A. No. 731/2019 was filed by the applicant/RP before this authority, which was partially allowed vide order dt. 14.06.2019. The relevant extract of the said order is reproduced below: v. "CA 731/2019 has been filed praying for directions to proceed towards liquidation. vi. Given the facts and circumstances, this application is allowed. vii. The assets of the Corporate Debtor be put for liquidation as no resolution plan has been received and 270 days are also over. Ld. RP has proposed his own name as the liquidator in this case as no decision has been taken by the COC in this respect. The same shall be taken up for consideration on the next date of hearing. viii. To come up on 4th July, 2019." ix. That, however, vide order dt. 04.07.2019, the said liquidation process was kept in abeyance and it was directed as under: x. "CA 827/2019 has been filed by the Resolution Applicant and the Suspended Board of Directors. The grievance of the applicant is that vide order dated 03.06.2019, the matter had been re-notified for further consideration to 8th July, 2019. Prior to the said date it appears that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the Corporate Debtor has been facing litigation. Neither the CIRP is concluded nor the Liquidation process is initiated. xvi. That in view of the judgment of the Hon'ble Supreme Court in the matter of Committee of Creditors of Essar Steel v. Satish Kumar Gupta, para 108. In this case, the Court held that the timelines prescribed by Section 12 are not mandatory. xvii. That in Committee of Creditors of Essar Steel (para. 108), the Supreme Court also held that this Tribunal had the power to extend the CIRP period if certain specific conditions were satisfied on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation. 3. We have heard the Ld. Counsel for the applicant and perused the averments made in the application. 4. Ld. Counsel for the applicant has also submitted the written submissions and the averments made in the written submissions are almost similar/same to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating Authority vide order dated 14.06.2019 passed the following order (at page 23 and 24 of the Application):- 12. We further notice that another CA No. 827/2019 was listed for hearing on 04.07.2019 and in the course of hearing of that matter, a reference was made in respect of the pendency of CA No. 731/2019 and in that proceeding, the Bench has passed the following order: "........Keeping in view the facts and circumstances of the case, the applicant has some merit in his submission. It would be in the interest of justice to ensure that the pending application is first disposed off and then liquidation be directed........" 13. On the basis of that order, the applicant has prayed that the liquidation order has not been passed and the application is still pending for liquidation. 14. At this juncture, we would like to refer the provisions contained under Section 33 and 34 of the IBC, 2016, which are quoted below:- Section 33-Initiation of liquidation. (1) Where the Adjudicating Authority,- (a) before the expiry of the insolvency resolution process period or the maximum period permitted for completion of the corporate insolvency resolution process under section 12 or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority. (6) The provisions of sub-section (5) shall not apply to legal proceedings in relation to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (7) The order for liquidation under this section shall be deemed to be a notice of discharge to the officers, employees and workmen of the corporate debtor, except when the business of the corporate debtor is continued during the liquidation process by the liquidator. Section 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 Chapter II or for the pre-packaged insolvency resolution process under Chapter HI-A shall, subject to submission of a written consent by the resolution professional to the Adjudicatory Authority in specified form act as the liquidator for the purposes of liquidation unless replaced by the Adjudicating Authority under sub-section (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority is vested with the power to pass the liquidation order. Whereas under Section 34 of the IBC, 2016, the Adjudicating Authority is empowered to appoint the Liquidator. 16. In the light of the aforesaid provisions, when we peruse the order passed by this Adjudicating Authority on 14.06.2019, we find that the application filed by the Resolution Professional for liquidation under Section 33 of the IBC, 2016 has already been allowed. Vide that Order, this Adjudicating Authority held that "The assets of the Corporate Debtor be put for liquidation as no resolution plan has been received and 270 days are also over." The matter is pending only for appointment of the RP as a liquidator as no decision has been taken by the CoC in this respect. 17. We have referred to the provision for the appointment of liquidator and as per the provision, whenever the Adjudicating Authority pass 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, act ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
