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TMI Blog2021 (3) TMI 1270X X X X Extracts X X X X X X X X Extracts X X X X ..... te Per: Ajay Kumar Vatsavayi, Member (Judicial) ORDER CA No. 1077/2019 IA No. 412/2020 IA No. 412/2020 has been filed by the Resolution Professional for M/s Best Foods Limited (Corporate Debtor) under Section 33(1)(a) of the Insolvency and Bankruptcy Code, 2016 for passing an order of Liquidation in the matter of M/s Best Foods Limited. 2. CP (IB) No. 117/Chd/CHD/2017 filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 by M/s Hajura Singh Bhim Singh to initiate Corporate Insolvency Resolution Process (in short CIRP) against M/s Best Foods Limited was admitted on 02.02.2018 and Mr. Atul Kumar Kansal was appointed as Interim Resolution Professional. Subsequently, vide order dated 17.04.2018, IRP was replaced and Mr. Vikram Bajaj was appointed as Resolution Professional. 3. The facts of the case, briefly stated, are that Form G inviting Expression of Interest was published in the newspaper Business Standard on 05.05.2018 and the same was republished on 07.08.2018. In pursuance of the said publication, RP received several EOI (s) but only one prospective Resolution Applicant-Maritime Trade Corporation (MTC) had submitted the resolution p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020, observed as under:- Likewise, the decision of the COC recommending liquidation of the corporate debtor after proper evaluation of the assets and liabilities of corporate debtor with no Resolution Plan forthcoming would be a business decision falling within the domain of commercial wisdom of the COC which is not amenable to judicial review. 8. We have carefully considered the submissions made in the application by the Resolution Professional and have also perused the records. 9. The relevant provisions of Section 33 (1) (a) of the Code are as follows:- Section 33: Initiation of liquidation. *33. (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 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quidation Process) Regulations, 2016 regarding contributions to liquidation costs. 14. Assessment of Sale as a going concern (Regulation 39C of CIRP Regulations, 2016) The COC has not made any recommendation regarding sale of the corporate debtor as a going concern. Therefore, the Liquidator is directed to refer to Regulation 32A of the IBBI (Liquidation Process) Regulation, 2016 and take necessary action. 15. Fees of the Liquidator (Regulation 39D of CIRP Regulations, 2016) The RP proposed to be appointed as Liquidator shall charge such fee for the conduct of the liquidation proceedings and in such proportion to the value of liquidation estate assets as may be specified by the Board. Regulation 4 of Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 provide for Liquidator s fee. Regulation 4(2) thereof states that the Liquidator shall be entitled to such fee and in such manner as has been provided therein. 16. Pending applications, if any, and its effect The learned authorized representative for applicant has stated that an Application bearing CA No. 1077/2020 dated 20.11.2019 seeking additional time for completion of CIRP with certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion commencement date. (vii) That the announcement shall be published in accordance with Regulation 12(3) of the IBBI (Liquidation Process) Regulation, 2016. (viii) That in accordance with Regulation 13 of the IBBI (Liquidation Process) Regulations, 2016, the Liquidator shall file his preliminary report within 75 days and to file regular progress reports as per Regulation 15 every fortnightly thereafter. 18. Thus, IA No. 412/2020 stands disposed of. 19. CA No. 1077/2019 has been filed by the Resolution Professional for M/s Best Foods Limited under Section 60(5) read with Section 12 of IBC 2016 and Rule 11 of NCLT Rules, 2016 seeking additional time period consumed in litigation. In view of the discussions as above, CA No. 1077/2019 is dismissed as withdrawn. 20. Accordingly, CA No. 1077/2019 is disposed of. IA No. 371/2020 21. This IA has been filed by Spring Infradev Limited under Section 60(5) of the IBC, 2016 read with Rule 11 of NCLT Rules, 2016 against the Resolution Professional for Best Foods Limited seeking the following reliefs:- i. To set aside the decision/communication of the Resolution Professional (Respondent No. 1) dated 03.08.2020 and dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oils Ltd. and Ors. CA (AT) (Ins) No. 518 of 2020 dated 11.01.2021 while answering the issue whether the Adjudicating Authority can direct the COC to consider the resolution plan of a person who was not part of CIRP observed as under:- 15. In pursuant to the expression of interest issued by RP on 24.08.2018 the Appellant submitted a Resolution Plan. After several rounds of deliberation by the COC revised Resolution Plan was submitted by the Appellant on 19.12.2018. The same was approved on 28.12.2018 by the COC in the 13th meeting by requisite majority. Thereafter, the RP filed an Application under Section 30 (6) of the I B Code for approval of Resolution Plan in the month of January, 2019 and sometime in the month of February, 2020 the Respondent No. 1 filed an Application seeking direction for consideration of its Resolution Plan. Admittedly the Respondent No. 1 has not submitted any Resolution Plan pursuant to the expression of interest issued by the RP. Thus, the Respondent No. 1 is not part of CIRP. The Respondent No. 1 has filed Application directly before the Adjudicating Authority. The Adjudicating Authority in the guise of maximization of the value of assets of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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