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TMI Blog2022 (7) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... explicitly state the grounds on which the Liquidator can be removed. In the absence of the specific provisions under the IBC, 2016 we may resort to Section 276 of the Companies Act, 2013 - In the present case, the Liquidator has stated in his reply that no stakeholder has the right to seek for replacement of Liquidator and that once the Liquidator is appointed, he cannot be removed unless there is a serious allegation of corruption. If we go by the contention as made by the Learned Liquidator then it should be construed that the Liquidator is infallible and this Adjudicating Authority has to simply close its eyes and let the Liquidator do whatever he wants. As to the present case of M/s. Jeypore Sugar Company Limited, it is to be seen that in the previous hearings serious allegations have been made against the Liquidator by the stakeholders that he has shared the valuation report with the prospective Scheme proponents and the Liquidator has also not denied the same. It is an admitted fact that the Liquidator has shared the valuation Report of the Corporate Debtor with the prospective Scheme proponents which lead to the proponents quoting value on par with the valuation report. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on allowed. - IA/815/IB/2020 in CP/1307/IB/2018 - - - Dated:- 1-7-2022 - S. Ramathilagam, J. (Member (J)) And Anil Kumar B., Member (T) For the Appellant : Varun Srinivasan, Advocate NVS Associates For the Respondents : Party-in-Person ORDER S. Ramathilagam, J. (Member (J)) 1. The above application has been preferred by IDBI Bank Limited, represented by its Deputy General Manager, NPA Management Group under 60(5) of the Insolvency and Bankruptcy Code, 2016 r/w. Rule 11 of NCLT Rules, 2016 and Section 276 of Companies Act, 2013 seeking following reliefs; a. Direct Shri V. Venkata Sivakumar to maintain status quo and not to take no further actions as the Liquidator of the Corporate Debtor pending the disposal of this Application; b. Remove Shri V. Venkata Sivakumar from acting as the Liquidator of the Corporate Debtor with immediate effect; c. Direct that all the actions carried out by him from May 29, 2020 as null and void; and d. Pass such other orders that it deems fit and thus render justice. 2. This Tribunal vide order dated 25.02.2019 had admitted an Application under Section 7 of the Code and commenced CIRP of the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removal of the respondent as the Liquidator and to declare all the duties and functions performed as the Liquidator as null and void. 7. It is the case of the Applicant that the respondent Liquidator by way of filing his written consent to act as the Liquidator of the Corporate Debtor without the requirement under Regulation 7A of the Insolvency and Bankruptcy Board of India (Resolution Professionals) Regulations, 2016 and has suppressed material fact. 8. The fact remains that as on the date of appointment of the Respondent as the Liquidator, the Respondent did not have a valid Authorisation for Assignment (AFA) 9. However, in response to this Application, the Respondent has raised the following preliminary objections and had sought dismissal of the present Application. It was submitted by the Liquidator that the subject matter of the petition filed seeking several reliefs by the Respondents being the Secured Creditors concerning the valuation of the Land and Buildings and Plant and Machinery carried out by the IBBI approved Registered valuers post the order of Liquidation. 10. The Learned Liquidator submitted that the Applicants are only claimants like the Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itly state the grounds on which the Liquidator can be removed. In the absence of the specific provisions under the IBC, 2016 we may resort to Section 276 of the Companies Act, 2013 which states as follows; 276. Removal and replacement of liquidator.--(1) The Tribunal may, on a reasonable cause being shown and for reasons to be recorded in writing, remove the provisional liquidator or the Company Liquidator, as the case may be, as liquidator of the company on any of the following grounds, namely:-- (a) misconduct; (b) fraud or misfeasance; (c) professional incompetence or failure to exercise due care and diligence in performance of the powers and functions; (d) inability to act as provisional liquidator or as the case may be, Company Liquidator; (e) conflict of interest or lack of independence during the term of his appointment that would justify removal. (2) In the event of death, resignation or removal of the provisional liquidator or as the case may be, Company Liquidator, the Tribunal may transfer the work assigned to him or it to another Company Liquidator for reasons to be recorded in writing. (3) Where the Tribunal is of the opinion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewed seriously by this Tribunal. The said act of the Liquidator would amount to failure to exercise due care and diligence in performance of the powers and functions and as such, it is one of the grounds on which the Liquidator can be changed. 19. Further, one of the grounds canvassed by the Learned Counsel for the Applicant is that the Liquidator at the time of accepting the assignment was not holding a valid AFA as per Regulation 7A of the IBBI (Resolution Professionals) Regulations, 2016 and as such he is disqualified to act as the Liquidator. In this regard, when the matter was agitated before the Hon'ble NCLAT in the matter of Committee of Creditors Represented by IDBI Bank Ltd. Vs. V. Venkata Sivakumar Anr. in Comp. App. (AT) (Insolvency) No. 754 of 2020, it was held as follows; Having heard the learned counsel for the parties, we are of the considered opinion that if there be any irregularity in appointment/confirmation of Respondent No. 1 as 'Liquidator' for not having a valid authorisation for assignment on the date of such acceptance or commencement of such assignment within the purview of Regulation 7-A of the aforesaid Regulations, that does not adv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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