TMI Blog2020 (1) TMI 1523X X X X Extracts X X X X X X X X Extracts X X X X ..... BC, 2016 would have no bearing upon them by virtue of Section 240A of the IBC, 2016. This Tribunal is of the view that the Respondents are trying to deceive this Tribunal by claiming themselves as an MSME, so as to enable them to submit the Scheme before the Liquidator, which is nothing short of an abuse of process of IBC. The Scheme of Arrangement has been proposed by the Ex-Directors and Promoters of the Corporate Debtor, who are qualified, taking into consideration the provisions of Section 29A of IBC, 2016 - a creditor / member who is otherwise ineligible under Section 29A of the IBC, 2016 is not qualified to be a proposer of the Scheme. Application disposed off. - MA/ 1322/2019 in MA/406/2018 in TCP/205/1B/2017 - - - Dated:- 31-1-2020 - R. VARADHARAJAN ANIL KUMAR B, JJ. For Liquidator: B. Dhanaraj, Counsel Deepa Mariappan, Counsel Kavitha Surana, Liquidator in person For Respondent Gautam: S. Raman, Counsel For Financial Creditor: R. Sugumaran, Counsel ORDER R. VARADHARAJAN, J. 1. The MA/ 1322/2019 has been filed by the Liquidator under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 r/w Rule 11 of NCLT Rules, 2016 seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 08.09.2017. 4. Thereafter, the Applicant effected Public Announcement on 21.07.2017 and in pursuance of the same, claim was received from One Financial Creditor M/S. JM Financial Asset Reconstruction Company Limited, 240 and more Operational Creditors and 1,500 and more Workmen / Employees. Pursuant thereto, the Invitation for Expression of Interest was published on 30.12.2017 and the Committee of Creditors at the meeting held on 15.03.2018, after due deliberations, approved the Resolution Plan submitted by M/S. Acestar Properties Private Limited, unanimously and the said Resolution Plan was approved by this Tribunal vide order dated 27.03.2019. However, the Resolution Plan submitted by M/S. Acestar Properties Private Limited did not materialize and as such, the Financial Creditor sought for the Liquidation of the Corporate Debtor and this Tribunal, due to the failure of the Resolution Plan, ordered for Liquidation of the Corporate Debtor vide its Order dated 11.12.2018 passed in MA/406/2018 and the Applicant herein was appointed as the Liquidator. 5. It is stated in the Application that the Liquidator has caused public announcement in Form B of Schedule Il calling upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitting the Scheme and it is also averred in the Application that the Scheme does not provide for payment as well as the timelines of payment of the Applicant Liquidator's Fees. 8. It is submitted by the Learned Counsel for the Liquidator that the Applicant has filed a Status Report enclosing the correspondence exchanged between the Applicant and the Respondent vide Diary No. 4902 on 11.10.2019 and it is observed from email dated 08.10.2019, Where the promoter contended that he shall not be barred from submitting the plan in the capacity as a Promoter under Section 230 of the Companies Act, 2013 as per the NCLAT direction and that he called for waiver of the said condition on Interest Free Deposit or Bank Guarantee. 9. The Learned Counsel for the Liquidator further submitted that the time frame for the submission of the Scheme expired on 30.09.2019 and the Scheme submitted by the Respondent through M/S. Shriram Properties Limited and M/S. Vijaya Raja Home Private Limited are in respect of the entire Forward Group of Companies, viz. (1) Forward Leather Co. (2) Forward Shoes (India) P. Ltd., (3) Conceria Virginia P. Ltd.,. It was submitted that the Applicant being the Liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid judgment makes it clear that even during the period of Liquidation, for the purpose of Section 230 to 232 of the Companies Act, the 'Corporate Debtor' is to be saved from its own management, meaning thereby the Promoters, who are ineligible under Section 29A, are not entitled to file application for Compromise and Arrangement in their favour under Section 230 to 232 of the Companies Act. Proviso to Section 35(f) prohibits the Liquidator to sell the immovable and movable property or actionable claims of the 'Corporate Debtor' in Liquidation to any person who is not eligible to be a Resolution Applicant, quoted below: - 35. Powers and duties of Liquidator. -(1) Subject to the directions of the Adjudicating Authority, the liquidator shall have the following powers and duties, namely:-- xxx xxx xxx (f) subject to section 52, to sell the immovable and movable property and actionable claims of the corporate debtor in liquidation by public auction or private contract, with power to transfer such property to any person or body corporate, or to sell the same in parcels in such manner as may be specified: Provided that the liquidator shall not se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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