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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 ..... 0 and thereafter the respondents 1&2 filed their counter on 01.01.2021 and 16.04.2021 respectively, and the applicant has filed his rejoinder on 18.08.2021. 3. We have heard the learned counsel for both the parties. The applicant has come up with the amendment petition at a belated stage. In the amendment petition the applicant sought amendment of MA/207/KOB/2020 on different aspects and that if the amendment application is allowed the character of MA/207/KOB/2020 itself will change. In the amendment petition the applicant wants to import new facts, which cannot be allowed after the pleadings are complete and the matter is ripe for hearing. Moreover, the Liquidation proceedings are to be completed within a stipulated period. Therefore, the application IA(IBC)101/KOB/2021 to amend the MA/207/KOB/2020 is dismissed. MA/207/KOB/2020 4. This MA has been filed by Mr. V.K. Abdul Rahim suspended Managing Director of the Corporate Debtor against Liquidator of M/s. Sargam Builders Private Limited under Section 60(5)(a) of Insolvency and Bankruptcy Code,2016 (hereinafter referred as I&B Code,2016) read with Rule 11 of National Company Law Tribunal Rules,2016 seeking the following reliefs: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as the Liquidator. 6. It is the contention of the applicant that the 1st CoC meeting is void abinitio due to the following irregularities: - i. This Hon'ble NCLAT vide its order dated 27.1.2020 held that the application is not time barred under Section 18 of the Limitation Act in view of the appellant's letters dated 5.2.2013 and 3.2.2016 As a One Time Settlement proposal under OSS scheme of RBI, wherein the appellant agreed to settle the outstanding debt of Rs. 27,87,321.81 pertaining to the term loan of Rs. 70 lakhs by remitting Rs. 35 lakhs provided the bank has to release the title deeds in respect of Shop No.20 and 20 A, which is not mortgaged to the Bank. So, Annexure 3(a) letter dated 3.2.2016 pertaining to only the term loan of Rs. 70 lakhs and not pertaining to the invoked bank guarantee account. As such, there is no letter acknowledging the alleged debt under invoked bank guarantee account. The Hon'ble NCLAT has pointed out in para 9 of the impugned order that the account became NPA on 15.1.2013. So, the three years period, as per the dictum of Hon'ble Supreme Court in B.K. Educational Services Pvt Ltd Vs. Parag Gupata and Associates - AIR 2018 SC 5601 etc, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest and admit the said illegal amount by adding interest of Rs. 3,29,34,860.39. However, as per the notice, it is seen that the IRP has admitted the entire amount of Rs. 4,39,60,553.25 illegally by adding the said interest. iv. As per the financial statements of 2018-19 and 2017-18, it can be seen that Rs. 3,31,50,856.00 is shown as inventories, which is part of the current assets. IRP has also published the assets and liability position as on the insolvency commencement date in page 6 of the said notice. But, when he prepared the assets and liabilities position on the insolvency commencement date, the said inventory figure (pertains to work -in- progress which is part of current assets) is deliberately reduced from the total current assets and erroneously noted the same as minus figure under profit and loss account and published the same in page 6 of the said notice. He has not given any explanation for reducing the inventory amount from the current assets and alter the said inventory amount to profit and loss account as a minus entry. He altered the current assets of the Corporate Debtor by a sum of Rs. 3,31,50,856.00 and arrived the wrong current assets as Rs. 17,25, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aluation of the fixed assets is still pending due to the subsequent COVID-19 protocol. iv. In the 3rd CoC meeting apart from Mr Sajan Philip Mathew two unauthorized persons named Mr. Jade Korason and Kochurani were attended the meeting representing the Respondent Bank. The RP has admitted claims of the three (3) home allottees named Dr. Gracy Abraham, Mr. Jacob Thomas and Mr. Varghese Jacob without FORM CA, in contravention to Regulation 8 (A). Regulation,12 (2) clearly mandates that a creditor who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof on or before the 90th day of Insolvency commencement date. The insolvency proceedings commenced on 20.09.2019. Thus after 19.12.2019, the Financial Creditor's right to be a member of the CoC and secure voting in CoC gets ceased. Even after that, the Resolution Professional has convened two CoC meetings dated 17.02.2020 and 16.03.2020. In both these COC meetings, there were no submission of claims by any of the said Financial Creditors' However only on 07.08.2020, the Resolution Professional has admitted the claims of new Financial Creditors i.e. (i) Dr. Gracy Abra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approvals, the RP has conducted the 4th CoC meeting. In the meeting, the Resolution Professional erred in stating observations such as (i) the project proposal started 10 years ago and still no approvals are obtained to start the construction (ii) the company has got no projects (ii) Obtaining a resolution applicant for a project without approvals in hand is difficult and so forth. While such false reasons are made by the representative of the respondent bank, the RP is holding the above referred four (4) approvals from the previous day onwards. On the basis of the above-mentioned fabricated reasons, the CoC decided not to go for fresh EOI deliberately suppressing the actual reason of COVID-19 pandemic for not obtaining EOI. By creating such a camouflage, the CoC recommended for liquidation under Section 33 (2) of IBC and that too with the illegal voting of Mr. Jacob Thomas, who is an un authorised representative. On 7.9.2020, the RP filed IA No.129/KOB/2020 and the Tribunal passed the order in the said IA with the narration 'No Appearance' for the petitioner. The IA was allowed and ordered liquidation proceedings against the petitioner's company with immediate effect under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided under Section 22(2) of the Act. A shareholder in his capacity is not entitled to any notice by the Interim Resolution Professional and is not entitled to challenge the proceedings with respect to the conduct of the CIRP or the meetings of the CoC if he is legally entitled. vi. It is also stated that the Tribunal had ordered the Liquidation of the Corporate Debtor in accordance with Section 33 of the Act on 16.09.2020 and the liquidator made public announcement within 5 days. If the applicant is aggrieved by the order of Liquidation an appeal ought to have been filed before the Appellate Tribunal. It is further stated that the bank guarantee was disputed and hence not liable be entertained by the liquidator has also no legs to stand. It was already pointed out that the counter claim raised by the Corporate Debtor in the nature or raising a claim of damages against the Financial Creditor owing to non- sanctioning of a further term loan of Rs. 5.70 Crores. The counter claim was a highly belated, incompetent and false claim camouflaged as a counter claim and made as in opposition to the OA filed by the Financial Creditor before the DRT. Prior to same, there was no dispute r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Appeal before the Hon'ble NCLAT as Company Appeal (AT) (Insolvency) No.1297/2019 which was dismissed by the Hon'ble NCLAT on 27.1.2020. Aggrieved by the order of the Hon'ble NCLAT, an appeal was filed before the Hon'ble Supreme Court of India on 10.9.2020 as CA.No.3294/2020. The Hon'ble Apex Court vide order dated 12.10.2020 dismissed the Appeal. Thereafter the Resolution Professional continued the CIR process and filed various progress reports before this Tribunal. 9. On 03.09.2020, the fourth CoC was held. As against Agenda item No.8- To take decision on reissue of Form G, COC with 77.92 % resolved not to reissue Form G further, and not to go for fresh EOI and recommended to file application before this Adjudicating Authority for Liquidation of Company under Section 33 (2) of IBC 2016 and also resolved to appoint the present Resolution Professional, Shri. Jasin Jose as the Liquidator. In the CoC, the representatives of the Federal Bank stated the following reasons for Liquidation: a. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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