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TMI Blog2021 (9) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... ings of this matter, it is seen that the Suspended Directors are not at all co-operating in the CIR Process and they were only on the lookout of creating hurdle to the continuation of CIR Process. Moreover, the applicant herein is a shareholder of the Company and as rightly pointed out by the Respondent No.2 he is not entitled to claim any relief against the CoC or the conduct of the CIRP. Without attending the meeting conducted by the IRP/RP, they are making bald allegations against the conduct of the CoC meetings. Their challenge to the order of admission of the application before the Hon ble NCLAT and the appeal against the order before the Hon ble Supreme Court was failed. Application dismissed. - MA/207/KOB/2020 and IA(IBC)101/KOB/2021 In TIBA/07/KOB/2019 - - - Dated:- 20-9-2021 - Hon ble Mr. Ashok Kumar Borah, Member (Judicial) And Hon ble Mr. Shyam Babu Gautam, Member (Technical) For the Applicant : Mr. Babu Karukapadath, Advocate For the Respondent No.1: Mr. Jasin Jose, CA (Liquidator) For the Respondent No.2: Mr. Mohan Jacob George, Advocate ORDER Per : Ashok Kumar Borah , Member ( Judicial ) IA (IBC) 101/KOB/2021 1. This IA (IBC) 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of M/s. Sargam Builders Pvt Ltd. vi. Order the Resolution Professional to release a sum of ₹ 3,25,538 -(being the refund of excess tax remitted for the year 2008-2009) to the applicant since the amount is received from another project of the company. vii. Such order or direction be given by the Tribunal as it deems fit in the facts and circumstances of the case. 5. The facts are that the 2nd Respondent Bank initiated proceedings under Section 7 of the I B Code,2016, and this Tribunal vide order dated 20.9.2019 admitted the application. Aggrieved by the said order, applicant herein preferred an Appeal before the Hon ble NCLAT as Company Appeal (AT) (Insolvency) No.1297/2019. The Hon'ble NCLAT vide its interim order dated 28.11.2019 directed the IRP not to constitute the Committee of Creditors till further orders. Thereafter, Hon'ble NCLAT dismissed the said appeal by its final order dated 27.1.2020. Aggrieved by the order of the Hon'ble NCLAT, the applicant approached the Hon'ble Supreme Court of India on 10.9.2020 filing CA.No.3294/2020. The Apex Court by order dated 12.10.2020 dismissed the Civil Appeal No. 3294/2020. Meanwhile, the Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25,692.86. The said OA claim pertains to two debts, i.e., the alleged debt under term loan and invoked bank guarantee account i.e., ₹ 28,15,925.43, and ₹ 82,09,767.43 respectively. As per the order of Hon ble NCLAT the claim under the bank guarantee is time barred so the claim of the bank ought to have been limited to the debt under the term loan which is ₹ 28,3 1,709.81. Therefore, the action of RP in admitting the false claim and publishing the same in the notice stating that it is admitted that too without FORM C is highly irregular. iii. On 11.2.2020, the Interim Resolution Professional issued notice to the Respondent Bank and Petitioner. In the notice, it was informed that the First CoC meeting shall be conducted on 17.02.2020. The agenda of the First CoC was also listed and informed to the recipients, which included the financial statements for 2018-19, 2019-20 and assets and liabilities of the applicant s company as on the insolvency commencement date. It is pertinent to note that the said statements are prepared by the IRP as mandated under Section 18 of IBC and produced the same in page 6 of the notice, wherein it is mentioned that the total liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed any written statement to the counter claim in OA and respondent bank is adjourning the case for 21 times at its instance and thus respondent bank is prolonging the OA for the last six years. Hence the appellant is eligible for set off. Further, it is informed not to accept the claim of the Bank without proper FORM C (under Regulation 8). ii. The application is filed by Mr. Sajan Philip Mathew who is the authorized representative of the Financial Creditor. But in the 1st CoC meeting the bank was represented by four unauthorized persons i.e (i) Pardeep G ) Kochurani (ii) Jade Korason (iv) Shinju Abdulla, which is in contravention of Regulations, 2016. As per Sections 24 (1) and (8) of IBC read with Regulation 2(10a) ,2(1)) and 2(1) (1) Mr. Sajan Philip Mathew is the only person who is entitled to attend the meeting. There is no record in the minutes to the effect that the Mr. Sajan Philip Mathew has given authorization to any of the said four persons. Mr. Sajan Philip Mathew himself was absent and he has not given any authorization to any of the four participants. In spite of that IRP has falsely recorded that the quorum is present. There is a serious material irregularity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2014. But the claim is filed in August,2020. As per section 238(A) of IBC, this claim also became time barred on 30.11.2017. Thus, it is clear that the admission of the claims of new financial creditors and allowed voting rights in the COC is clearly in violation of Regulation, 2016. v. On 10.08.2020, the Resolution Professional issued FORM G, calling invitation of Expression of Interest. The CoC granted only mere 15 days time towards the public and other stakeholders to submit feasible and viable expression of interest. As per the schedule of FORM-G, last date of receiving FORM-G was 25.08.2020 and last date for submission of resolution plan is 09.10.2020. Finally, the estimated date of submission of resolution plan was decided as on 23.10.2020. In the midst of extremely serious COVID-19 pandemic without providing further chance to file Resolution Plans the decision of the CoC to file Section 33 (2) application is malicious. vi. In the 4th CoC meeting along with Mr. Sajan Philip Mathew, three unauthorized persons named M/s. Mohammed Sageer,, Jade Korason ,Kochurani attended the meeting. vii. Since the respondent Bank did not disburse the term loans of ₹ 27.5 Lakhs a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments necessary to procure a proper building permit. ii. It is further stated that the suspended Managing Director had entered into a MOU with few homebuyers in 2016 to give back the advance received with interest and issued postdated cheques. But the cheques could not be presented as he again given another cheque withdrawing the earlier cheques. iii. It is also stated that it is difficult to receive a resolution plan since construction is not yet started as no necessary documents are available and currently the real estate sector is not in demand and considering the statistics of the unsold unit of finished projects, unfinished units, pending projects under completion stage, CoC recommended for Liquidation of the Corporate Debtor. iv. The Respondent No.2 in their counter affidavit stated that a shareholder is not privy to the CoC meetings and only a suspended director is entitled to raise any objections regarding the impropriety, irregularity or illegality of the CoC meetings. That apart the CoC is also not made a party to the instant petition. Further the applicant who even though was given notice of the meetings he did not attend any of the meetings and had chosen to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All these aspects were placed on record along with the Rejoinder filed by the Financial Creditor and the averments to the contrary are false. It is also stated that the wisdom of CoC in taking a decision to liquidate the Corporate Debtor is not open for adjudication before the NCLT. vii. The provisional financials prepared by the IRP is on the basis of incorrect information furnished by the Corporate Debtor. Any mis- statement in the balance sheet of the Corporate Debtor or in the provisional financials is not binding on the Financial Creditor regarding the question of its claim. The debt is proved by the financial creditor in accordance with the proof of claims prescribed under the Act and Regulations. There is no estoppel against the Financial Creditor in respect of any provisional financial statements made on incorrect information of the Corporate Debtor. viii. As no resolution plan materialized, the IRP had only intimated the decision of the CoC to liquidate the Corporate Debtor. The Code does not provide for issuing notice to the suspended Director and the shareholders prior to the order of liquidation being made. The Corporate Debtor is under the control of the CoC and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p room is vacated. f. The company has no other staff except one office manager and one sweeper. g. The company has got no proper office premises with proper records, rent agreements are not renewed, no electricity and water connection in the company and it is functioning in the house of the Suspended Director. h. One of the suspended directors Mr VA Rahim is managing the day- to-day affairs of the company and other two directors are family members. The suspended directors have not attended any of the CoC meetings and not extending the co-operation with CoC. 10. Resolution Professional based on the resolution passed by the CoC filed I.A No. 129/KOB/2020 on 07.09.2020 before this Tribunal. Vide order dated 16.09.2020 this Tribunal allowed the application and ordered Liquidation of M/s. Sargam Builders Pvt Ltd (Corporate Debtor) and appointed Shri. Jasin Jose as the Liquidator. The Corporate Insolvency Resolution Process stood completed by the decision of CoC to liquidate the Corporate Debtor and the liquidation is in progress. Liquidator was promptly filing the progress reports in the Liquidation process before this Tribunal. At this stage, the applicant cannot turn aroun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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