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TMI Blog2022 (6) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... HAT:- The applicant s plea that a different approach should be adopted for MSME is also not tenable as the applicants are clearly hit by the provisions of Section 29-A of the Code. In any case, the period for issuing any direction to the Liquidator to sell the corporate debtor as a going concern is over as private sale has already taken place in compliance with the provisions of the relevant Sections of the Code and in the related Regulations made thereunder. No case has been made out by the applicants-Ex-Promoters that there has been any violation of the provisions of the Code in the private sale effected by the Liquidator - Application dismissed. Seeking to issue necessary direction to the Liquidator to sell the Corporate Debtor i.e. M/s Supreme Tex Mart Limited (STML) as a going concern in liquidation - HELD THAT:- As clarified in the order pertaining to the earlier two IA Nos.227/2021 and IA No.228/2021, private sale has already taken place in the present case in compliance with the provisions of the relevant provisions of the Code and Regulations made thereunder. It is also seen from the records that the Liquidator has made adequate efforts and attempts to sell the corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Process) Regulations, 2016 are not with retrospective effect. Thus in the present case, Stakeholder Consultation Committee (SCC) cannot be allowed to be constituted - Application dismissed. - IA No.227/2021, 228/2021, 536/2021, 285/2021, 286/2022, 287/2022, 288/2022 in CP (IB) No.67/Chd/Pb/2017 (admitted) - - - Dated:- 21-4-2022 - Allahabad Bank Versus M/s Supreme Tex Mart Limited Ajay Gupta and Gautam Gupta Versus Sh. Ravinder Kumar Goel, Liquidator of M/s Supreme Tex Mart Limited, State Bank of India (Lead Bank of Consortium), Rajendra Ispat Private Limited Ajay Gupta and Gautam Gupta Versus Sh. Ravinder Kumar Goel, Liquidator of M/s Supreme Tex Mart Limited Bluechip Worldwide Yarn Private Limited Versus Sh. Ravinder Kumar Goel, Liquidator of M/s Supreme Tex Mart Limited State Bank of India Versus Sh. Ravinder Kumar Goel, Liquidator of M/s Supreme Tex Mart Limited Juneja Woollen Mills Versus Sh. Ravinder Kumar Goel, Liquidator of M/s Supreme Tex Mart Limited State Bank of India V.N. Yarns, a proprietorship firm through its proprietor Sh. Naresh Kumar Juneja Versus Sh. Ravinder Kumar Goel, Liquidator of M/s Supreme Tex Mart Limited State Bank of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that the applicant was asked by the CoC in its 2nd meeting dated 18.11.2017 to file a resolution plan. Subsequently, the applicant was hit by the provisions of Section 29-A which was introduced w.e.f. 23.11.2017. Hence, the promoters could not participate to offer resolution plan. 5. It is submitted that the liquidation was initiated vide order dated 08.08.2018 against M/s Supreme Tex Mart Limited, as no resolution plan was approved within the stipulated period of 270 days. 6. It is further submitted that in April 2018, September 2019 and October 2019, Respondent No.1 has conducted auctions but the same were failed. The erstwhile Liquidator Mr. Bhupesh Gupta conducted many unsuccessful auctions attempts as there were no bidders for the same. 7. It is averred that the applicants have filed the application in September 2020 before this Tribunal for declaring them eligible to bid for the purchase of corporate debtor as a going concern. In the meanwhile, the fact that the company had incurred heavy losses thus in the last balance sheet ending on 31.03.2019 it reported losses amounting to Rs.177.35 Crores. The applicants have mentioned several instances where despite a decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any bid in the aforesaid auction. After the substantial lapse of time, the applicant filed an IA No. 533/2020 in which relief qua submission of bid was sought. Despite an order by this Tribunal dated 25.01.2021, the applicant failed to submit any bid for the auction dated 27.01.2021. The Liquidator had sold the Spinning Unit-1 located at Village Kanganwal to Respondent No.3 at the price of Rs.19.86 Crores as against Rs.19.85 Crores which was reserve price in auction dated 27.01.2021. It is also submitted by respondent No.1 that the financial creditors strongly opposed the proposal of the Promoters/Applicant as they are not eligible to submit any bid under Section 29A of IBC, 2016 since they are declared willful defaulters and criminal complaints for fraud has also been initiated. Moreover, the reserve price of the last failed auction i.e. 27.01.2021 was at Rs.96.20 Crores for the seven lots/parcels of the corporate debtor, but the offer of the Ex-Promoters was at approximately Rs.80 Crores. 13. The Respondent Nos.2 3 have also filed its reply vide Diary No. 00580/2 dated 07.05.2021 and Diary No.00580/3 dated 10.05.2021 respectively wherein the averments of the respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manner specified in the terms of sale. 17. From the facts of the case in hand, it is observed that the applicant-Ex Promoters have not participated in the auctions on 28.08.2019, 27.09.2019, 18.10.2019 and 21.09.2020. It is also observed that the applicant has failed to submit any bid for the auction dated 27.01.2021 in compliance with the direction of this Tribunal dated 25.01.2021. These responses or these lack of responses from the applicants cast serious doubt over their actual intention with regard to the bidding of the corporate debtor. Their subsequent offer of approximately Rs.80 Crores falls way below the reserve price of the last failed auction on 27.01.2021 at Rs.96.02 Crores. It is also clarified here that the Ex-Promoters do not have any vested right who asked for preference for any other bidders under the provisions of the Code and the Regulations made thereunder. Prima facie, the Liquidator has followed the provisions laid down in Regulation 33 and also with regard to and the procedure for private sale as mentioned in Schedule-I. The applicant has failed to make out a case that there has been any infringement of these Sections and Regulations on the part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate Limited (BWYPL) against the Liquidator of M/s Supreme Tex Mart Limited under Section 60(5)(c) of the IBC, 2016. 2. It is prayed by the applicant to issue necessary direction to the Liquidator to sell the Corporate Debtor i.e. M/s Supreme Tex Mart Limited (STML) as a going concern in liquidation. 3. It is submitted by the applicant that the liquidation process was initiated on 29.09.2017 and the corporate debtor is ordered to be liquidated on 08.08.2018. The applicant has filed a preliminary expression of interest to purchase the corporate debtor as a going concern on 28.05.2021 through e-mail. The applicant proposes a revival plan for the corporate debtor in liquidation as the corporate debtor is having the necessary power load sanctions and necessary water discharge sanctions from the Punjab Pollution Control Board in the name of Supreme Tex Mart Limited. 4. The respondent has filed its reply vide Diary No.01292/01 dated 08.11.2021 wherein it has been stated that the Spinning Unit-1 has already been sold on 31.03.2021 by the Liquidator at a price of Rs.19.86 Crores. The three vehicles of the corporate debtor have already been sold in the private sale on different dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to constitute a Consultation Committee of stakeholders as required under Regulation 31-A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. It is further prayed by the applicant to restrain the Liquidator from taking any decision with regard to sale of liquidation of estate of the corporate debtor. 2. It is submitted by the applicant that CIRP was initiated against the corporate debtor on 29.09.2017 and the corporate debtor was ordered to be liquidated on 08.08.2018 and Mr. Bhupesh Gupta was appointed as Liquidator. After the liquidation, no Consultation Committee was constituted in terms of Regulation 31A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 by the Liquidator. The financial facilities were granted to corporate debtor by way of consortium finance in which there were 12 financial institutions. Since no Consultation Committee was constituted, so the members of the consortium continue to meet in order to safeguard their interests. The other financial creditors have authorised unanimously authorized State Bank of India to file the present application. Copy of the minutes dated 17.03.2021 auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) The Hon ble Supreme Court in State Bank of India Vs. V. Ramakrishnan Anr. in Civil Appeal No.3595 of 2018 decided on 14.08.2018, 2018(4) R.C.R (Civil) 110 (ii) The Hon ble Supreme Court in Central Bank of India Vs. Workmen, AIR 1960 Supreme Court 12, (iii) The Hon ble Supreme Court in Thirumalai Chemicals Ltd. Vs. Union of India and Ors. in Civil Appeal No.3191-3194 of 2011 decided on 11.04.2011, 2011 AIR (SC) 1725 (iv) The Hon ble Supreme Court in Allied Motors (P.) Ltd. Vs. Commissioner of Income Tax, Delhi decided on 10.03.1997, 1997 AIR (SC) 1361 (v) The Hon ble Supreme Court in B.K. Educational Services Private Limited Vs. Parag Gupta and Associates in Civil Appeal No.23988 of 2017 decided on 11.10.2018, 2018 AIR (SC) 5601 6. The respondent has placed reliance on the decision of the Hon ble Supreme Court in the matter of Ghanashyam Mishra and Sons Private Limited Vs. Edelweiss Asset Reconstruction Company Limited and Ors. [2021] 227 Comp Cas 251 (SC) decided on 13.04.2021 in support of his contention that Regulation 31A has to be considered a substantive provisions and thus cannot be given retrospective effect. 7. We have heard the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns are filed by the Juneja Woollen Mills (Applicant in IA No.286/2022); V.N. Yarns, through its proprietor Sh. Naresh Kumar Juneja (Applicant in IA No.287/2022) and N.R.A. Trading Co., through its proprietor Sh. Naresh Kumar Sons (HF) (Applicant in IA No.288/2022) respectively against the same respondents i.e. Liquidator Sh. Ravinder Kumar Goel of M/s Supreme Tex Mart Limited (Respondent No.1) and State Bank of India (Respondent No.2), under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Regulation 31A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. 2. In the present applications, the applicants pray to issue appropriate directions to the Liquidator to immediately constitute Consultation Committee of stakeholders as required under Regulation 31A of the IBBI (Liquidation Process) Regulations, 2016. It is further prayed that during the pendency of the present application, a status quo order may kindly be granted with regard to the alienation of any immovable or movable assets of the corporate debtor. 3. It may be noted that in the present three IAs, the facts and reliefs claimed are the same. Hence, all three IAs a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was listed on 19.04.2022, the following order was passed:- It is submitted by learned counsel for the respondent that IA No.285/2021 has already been reserved, wherein same question of constitution of Stakeholders Consultation Committee (SCC) is involved and he does not want to file reply in the present applications and it is requested that the same may be disposed of along with IA No.285/2021, which has already been reserved. Thus, keeping in view the submissions made by the learned counsel for the respondent-Liquidator all these three applications bearing IA No.286/2022, 287/2022 and 288/2022 are also reserved. 8. We have heard the learned counsel for the applicants as well as respondents and perused the records carefully. 9. For reasons recorded in our order in IA No.285/2021, we hold that the provisions of Regulation 31A of the IBBI (Liquidation Process) Regulations, 2016 are not with retrospective effect. Thus in the present case, Stakeholder Consultation Committee (SCC) cannot be allowed to be constituted. As a result, all these three applications i.e. IA No.286/2022, 287/2022 288/2022 stand dismissed and disposed of accordingly. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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