9911796707
TMI Blog2022 (4) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court of Delhi, wherein time was extended up to 31/07/2020 still the Corporate Debtor did not pay the amount. Admittedly the Scheme under Section 230 of the Act was never formalised; the date extended by the Hon ble High Court of Delhi was only up to 31/07/2020; that more than two years has lapsed subsequent to the Order of this Tribunal; that it is a Section 10 Application under the Code filed by all three Companies together; that the Order dated 15/07/2020 has attained finality, the Liquidator has only complied with the terms of the Order dated 15/07/2020 and lastly there is no Scheme which has been filed till date under Section 230-232 of the Act; it cannot be said that the action of the Liquidator in selling the asset by public auction, be termed as contempt or any breach of the Order of the Adjudicating Authority. Appeal dismissed. - COMPANY APPEAL (AT) (INSOLVENCY) No. 49 of 2022 - - - Dated:- 19-4-2022 - [Justice Ashok Bhushan] Chairperson, [Dr. Alok Srivastava] Member (Technical) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Mr. Manan Batra, Dr. Amit George Advocate For the Respondent : Mr. Sumant Khatri, Advocate for Liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uidation Order, this Tribunal vide Order dated 30/05/2019 directed the Liquidator to take steps as laid down in terms of the Order Y Shivaram Prasad V/s. S. Dhannapal and Ors. in Company Appeal (AT) (Insolvency) No. 224 of 2018 that the Appellant herein has indifferent intervals till 20/02/2021 paid a total sum of ₹ 11 Crs./- to the Karnataka Bank in accordance with the terms of Settlement of the OTS; that vide email dated 18/08/2019, pursuant to the OTS, the Appellant had requested the Liquidator to file appropriate an Application before the Adjudicating Authority for necessary sanction/approval in terms of the Code and revive the Corporate Debtor ; that the Appellant was constrained to file an Application under Section 230 231 of the Companies Act, 2013, (hereinafter referred to as The Act ) individually before the Adjudicating Authority which was opposed by the Liquidator despite the settled law; the Appellant filed an Application in CA 1064/2019 bringing on record the additional documents pertaining to the payment made to the Karnataka Bank in accordance with the OTS and sent an email dated 15/11/2019 requesting the Liquidator to forward the Settlement Scheme in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant that without considering the fact that the Corporate Debtor is an MSME, the Special Bench of the Adjudicating Authority, solely on the submissions advanced by the Counsel for the Liquidator, recorded that the Scheme under Section 230 of the Act was not maintainable as the Appellant was hit by Section 29-A of the Order which makes him ineligible. Thereafter the Appellant sent an email on 28/08/2020 and on 31/08/2020 to the Liquidator that the Applicant has a buyer who is ready to purchase the said property for a sum of ₹ 11 Crs./- and therefore requested the Liquidator to allow the prospective buyer to inspect the said property at a suitable date and time; that the Liquidator vide email dated 02/09/2020 refused to adhere to the request of the Appellant and with an intention to frustrate the scheme of the Appellant, issued an auction notice dated 20/09/2020 reserving the price of the said property for a sum of ₹ 6 Crs./-, though the prospective buyer was ready to purchase the property for a sum of ₹ 11 Crs./-. It is the main case of the Appellant that despite an Order of this Tribunal directing the Liquidator to comply with the terms laid down in Y S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date the assets is reproduced as hereunder; Counsel for the Applicant is present. Counsel for Liquidator is present. Counsel for Financial Creditor is present. It is brought to notice that a writ petition was filed by the applicant before the Hon ble High Court of Delhi, wherein time up to 31st July 2020 is granted for making payment to the Financial Creditor. It is necessary to record the submission of the Counsel for Financial Creditor that the Applicant has approached to the Financial Creditor to give relaxation in relation to the payment. However, the Financial Creditor has taken a decision that there cannot be any relaxation as requested by the Applicant. It is also on record that Special Bench, NCLT, Delhi on 19.03.2020 directed the liquidator to proceed to liquidate the CD in accordance with the law. The matter stands adjourned. List on 7th August 2020. (Emphasis Supplied) 6. The Order of this Tribunal directing the Liquidator to proceed as per terms of Y Shivaram Prasad (Supra) is dated 21/05/2019. In this interim period it is an admitted fact that there was no Scheme which was formalised under Section 230 of the Act. It is the main case of the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates provided to them by the Board; (iv) where the company proposes to adopt the corporate debt restructuring guidelines specified by the Reserve Bank of India, a statement to that effect; and (v) a valuation report in respect of the shares and the property and all assets, tangible and intangible, movable and immovable, of the company by a registered valuer. ... 23. Section 230(2)(c) uses expression any scheme of corporate debt restructuring consented to by not less than seventy-five per cent of the secured creditors in value . Sub-clause (c) of sub-section (2) of Section 230 is attracted when there is a scheme of corporate debt restructuring. The expression used in sub-clause (c) is corporate debt restructuring . Debt restructuring is well known concept. Debt given by a lender can be restructured by the lender by any scheme issued by the lender or Reserve Bank of India or Central Government. Debt restructuring scheme which are issued by the Reserve Bank of India or Central Government from time to time are to mitigate the hardship of the borrowers. 8. On a pointed query from the Bench as to whether any Scheme was formalised or Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is clear that despite the extended time granted by the Hon ble High Court of Delhi, wherein time was extended up to 31/07/2020 still the Corporate Debtor did not pay the amount. The Adjudicating Authority has observed in their Order dated 15/07/2020 as follows: It is necessary to record the submission of the Counsel for the Financial Creditor that the Applicant has approached the Financial Creditor to give relaxation in relation to the payment. However, the Financial Creditor has taken a decision that there cannot be any relaxation as requested by the Applicant. 10. This Order has attained finality and the Liquidator has proceeded to auction the sale of the asset. It is an admitted fact that the property was sold in 2021. It is seen from the Minutes of the Meeting dated 17/01/2020 that the Members of the stakeholders had recorded in the Minutes as follows: The Corporate Debtor Company is not going concern since April 2017. The Corporate Debtor Company is out of business from 2.5 years approximately. There is no key managerial person available in Corporate Debtor Company. There is no employee in the Corporate Debtor Company. Assets aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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