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TMI Blog2022 (8) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... nce alone or shall include/exclude the other member(s) of CoC who are not present physically or through video conference in the meeting - In so far as the case on hand is concerned, admittedly the voting share of the Financial Creditor who was present and voted for liquidation of the Corporate Debtor, is only 55.87%. It is pertinent to state herein that the other lone Financial Creditor neither present nor cast his vote through it is entitled to vote. As per the submissions made before us there are no chances of the resolving the existing stalemate in near future as the other sole member of CoC is not willing to even attend the meetings of CoC. Therefore, under these circumstances, even if direct the Resolution Professional to once again call for the meeting of members of the CoC to consider the feasibility of going for a fresh EOI or liquidation, the same would only contribute to further delay in liquidating the corporate applicant herein, and thus, defeat the timelines set under the IB Code, hence we do not wish to go for the said option. The liquidation of the Company in the manner laid down in Chapter-III of the Code is allowed - application allowed. - IA 446/2022 in CP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voting share of only 55.87% present and voted for liquidation of the corporate debtor and the other lone member remained absent, when not less than sixty-six per cent of the voting share is required in terms of sub-clause (2) of Section 32 of IBC. 8. Before we proceed to discuss, it would be necessary to refer to the following factual aspects of the matter. (i) On 01.10.2021, this Tribunal vide order in CP (IB) No. 291/10/HDB/2020 admitted the Company Petition filed under Section 10 of the IBC by the Corporate Applicant/SSB Retail India Private Limited and appointed an IRP to carry out Corporate Insolvency Resolution Process against the Corporate Applicant. (ii) The CoC as constituted by the IRP, initially comprised of Karnataka Bank Limited alone, the 1st Respondent herein with 100% voting right. Later the CoC was reconstituted with the 2nd Respondent as another member as per the report dated 16.11.2021 certifying re-constitution of committee of creditors. With the admission of the said 2nd Respondent into CoC, the voting share of the 1st Respondent/Financial Creditor has become to 55.87% and that of the 2nd Respondent 44.13%. (iii) The Interim Resolution Professi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that sub-section 2 of section 33(2) of the Code, is silent as to whether the said 66% of voting share shall comprise of the members present either in person or by video-conference alone or shall include/exclude the other member(s) of CoC who are not present physically or through video conference in the meeting. 11. In so far as the case on hand is concerned, admittedly the voting share of the Financial Creditor who was present and voted for liquidation of the Corporate Debtor, is only 55.87%. 12. Here we may state that Section 30(4) of the IB Code, which is as below, is almost identical to sub-clause (2) of Section 33 of IB Code. 13. Referring to sub-section (4) of Section 30, which says that the 'Committee of Creditors' required to approve a 'Resolution Plan' by a vote of not less than sixty-six percent, Hon'ble NCLAT in re Tata Steel Limited v. Liberty House Group Pte. Ltd. Ors.(Company Appeal (AT) (Insolvency) No. 198 of 2018, held that On plain reading of sub-section (4), it is clear that the members of the 'Committee of Creditors' only after considering its feasibility and viability, and such other requirements as may be specified by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to even attend the meetings of CoC. Therefore, under these circumstances, even if direct the Resolution Professional to once again call for the meeting of members of the CoC to consider the feasibility of going for a fresh EOI or liquidation, the same would only contribute to further delay in liquidating the corporate applicant herein, and thus, defeat the timelines set under the IB Code, hence we do not wish to go for the said option. 16. Therefore, following the ruling in Tata Steels, supra, where it was held that if some members of the 'Committee of Creditors' having 2.88% voting shares remained absent, it cannot be held that they have considered the feasibility and viability and other requirements as specified by the Board, therefore, their shares should not have been counted for the purpose of counting the voting shares of the Company Appeal (AT) (Insolvency) No. 198 of 2018 'Committee of Creditors'. In fact, 97.12% voting shares of members being present in the meeting of the 'Committee of Creditors' and all of them have casted vote in favor of 'JSW Steel', we hold that the 'Resolution Plan' submitted by 'JSW Steel' has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) All powers of the Board of Directors, Key Managerial Personnel and partners of the Corporate Debtor shall cease to have effect and shall be vested in the Liquidator. (g) The Liquidator shall exercise the powers and perform duties as envisaged under Sections 35 to 50 and 52 to 54 of the Code, read with Insolvency Bankruptcy Board of India (Liquidation Process) Regulations, 2016. (h) Personnel connected with the Corporate Debtor shall extend all assistance and co-operation to the Liquidator as would be required for managing its affairs. (i) The Liquidator shall be entitled to such fees as may be specified by the Board in terms of Section 34(8) of the Code. (j) This order shall be deemed to be a notice of discharge to the Officers, employees and workmen of the Corporate Debtor, except when the business of the Corporate Debtor is continued during the liquidation process by the Liquidator. (k) Copy of the order shall be furnished to the Regional Director, Ministry of Corporate Affairs, Registrar of Companies Official Liquidator, Hyderabad, the Registered Office of the Corporate Debtor and the Liquidator. (l) Copy of this order to be communicate ..... 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