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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 ..... g of Committee of Creditors conducted on 29.10.2021 and on 16.11.2021, the COC was reconstituted with a new financial creditor and 2nd meeting of CoC which was scheduled on 24.11.2021 was cancelled as no member of CoC was present in the said meeting, the CoC meeting was not held. 4. In the 5th CoC meeting held on 25.02.2021, the Secured Financial Creditor i.e. Karnataka Bank having 55.87 % voting share in CoC has opined that resolution of the Corporate Applicant is difficult in the instant case and as such recommended for liquidation of the Corporate Applicant. However, Mr. Basanthlal Sah, the other Financial Creditor representing 44.13% voting rights was neither present nor casted his vote. Thus submitting, the Applicant prayed the Tribunal to pass an order of Liquidation and appoint the Applicant herein as Liquidator, who has filed his consent. 5. Therefore the point that require our consideration is; Whether the Adjudicating Authority can order liquidation of the Corporate Debtor in terms of Section 33(1)(a) of IBC, when the resolution for liquidation of the Corporate Debtor has been voted with only 55.87% voting share? 6. We have heard Mr. Pavan Kankani, Liquidator, perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproval of CoC be and is hereby granted for making application before the Hon'ble National Company Law Tribunal, Hyderabad Bench, for passing appropriate orders u/s. 33(1)(a) and u/s. 34(1) of Insolvency and Bankruptcy Code, 2016". Further resolved that Mr. Pavan Kankani, Resolution Professional be is hereby authorised to make an application, sign, execute all such documents and papers, appoint professionals to represent before the Hon'ble National Company Law Tribunal and do all such acts and deeds as may be required to give effect to the above resolution". Hence the present application. 9. In this backdrop, we first refer to Section 33(2) of IBC, which is as follows:- 33(2): Where the resolution professional, at any time during the corporate insolvency resolution process but before confirmation of resolution plan, intimates the Adjudicating Authority of the decision of the committee of creditors 1 [approved by not less than sixty-six per cent of the voting share] to liquidate the corporate debtor, the Adjudicating Authority shall pass a liquidation order as referred to in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1). 10. No doubt from a plain re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Creditors' with 97.12% voting shares and voters having 2.88% voting shares remained absent. 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 favour of 'JSW Steel', we hold that the 'Resolution Plan' submitted by 'JSW Steel' has been approved with 100% voting shares". ( Emphasis Supplied ) 14. Since both provisions, namely, Sub-section 4 of section 30 and sub clause 2 of section 33 of IB Code, in so far as they relate to the requirement of minimum voting share being identical, the ruling, in re, Tata Steel Limited, supra, in our considered view can be applied to the case on hand. 15. It is pertinent to state herein that the other lone Financial Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the objectives of IB Code. We therefore take this opportunity to suggest to IBBI, to ponder upon bringing a suitable amendment to sub clause 2 of section 33 of IB Code, to meet situations of the present kind, so that the stalemate in taking the liquidation process forward when resolution fails, can be avoided. 18. Hence, in the interest of justice we allow this application and pass order for liquidation of the Company in the manner laid down in Chapter-III of the Code. ORDER 19. The Application is accordingly allowed with the following directions:- (a) The Corporate Debtor i.e. M/s. SSB Retail India Private Limited shall be liquidated in the manner laid down in Chapter-III of the Code. (b) The Resolution Professional Mr. Pavan Kankani having IBBI Registration No. IBBI/IPA-002/IP-N00368/2017-18/11062 will continue as Liquidator for conducting liquidation of the Corporate Debtor. (c) He shall issue public announcement stating that the Corporate Debtor is in liquidation. (d) The Moratorium declared under Section 14 of the code shall cease to operate here from. (e) Subject to Section 52 of the Code, no suit or other legal proceedings shall be instituted by or agains ..... X X X X Extracts X X X X X X X X Extracts X X X X
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