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TMI Blog2022 (10) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... various judicial forums including SEBI which has taken up the matter extensively considering the grievances of the high number of NCD holders. There has been confiscation of the records of the CD by the Crime Branch of Police Kerala wherein proceedings are pending before criminal courts - The AR as well as the RP has also submitted that the NCD holders forming CoC has presently lost hope on the CIRP and the COC has resolved not to proceed with the CIRP and only to pursue the recovery proceedings before SEBI. The applicants can proceed before SEBI or its appellate authority to address their grievances. We further note that the liquidation application of the CD is pending to be heard before this Tribunal and at this stage it is not equitable to allow the prayers of the applicants who only form a miniscule percentage in the COC themselves. The applicants could have very well raised and sorted their concerns before the RP and AR themselves rather than approach this Tribunal at this stage. The present exercise of the applicants to seek such remedies at this stage is frivolous and is only going to delay the process envisaged under IBC further and shall cause detriment to the CIRP and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have stated that the total debt owed to the NCD Holders by the CD comes to more than Rs.236 crores wherein the applicants are owed Rs.57.87 lakh hence forming approximately 0.24% of the part of COC. The applicants have stated that the 2nd respondent has not communicated the matters regarding the conduct of the CIRP or conducted any meeting of the NCD Holders till date. It is stated that the respondents have taken crucial decisions including the initiation of liquidation of the CD unilaterally without knowledge of the applicants. The applicants further stated that the Information Memorandum (IM) under regulation 36 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 which was prepared by the RP with available details as is duly noted in the 3rd COC meeting minutes held on 4th January 2020 was not intimated to them by the RP or any notices in relation thereto given by the Authorised representative. Further there was preferential, undervalued, fraudulent and extortionate credit transactions in the CD over the years as observed by the RP and a forensic audit was conducted and the report of same was also not circulated to the applicants. It is contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 36 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the IM shall be made available after getting an undertaking to the effect that applicant shall maintain confidentiality of the information and shall not use it to cause undue gain or loss to itself or others. This matter along with availability of IM was communicated to all the NCD holders whose email IDs were duly provided. The RP stated that as the CD has not maintained appropriate books and records under law and there was alleged Preferential Transactions, Undervalued Transactions, Extortionate Credit Transactions, Fraudulent Transactions and Fraudulent Trading under Section 43 to 50 of the insolvency and Bankruptcy code, 2016 due to which a Forensic Audit was conducted. The Forensic Audit found that there was Preferential Transactions, Undervalued Transactions, Extortionate Credit Transactions, Fraudulent Transactions and Fraudulent Trading in the CD however the amount was not quantifiable due to unavailability of proper records. It was also observed that there were secondary books of accounts maintained by CD but it was not available and hence RP has also preferred an application for invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their participation. This tribunal on perusal of the records and arguments on either side finds no merit in the same as the applicants have duly submitted their claim forms to the RP in time and that they had every opportunity to contact the RP and the AR accordingly. The RP has submitted that there was a dedicated website made to conduct the CIRP proceedings and all information is duly made available in the same. Hence, the contention of the applicants that the notices and communication were not properly served cannot be accepted. Further, we note that the NCD holders forming class of financial creditors are of a huge number and the conduct of physical proceedings is not easy process considering the practicality of the same and that IBC is a time bound process. However, the learned RP took all the possible endeavour to conduct physical meeting of COC in Kerala where majority of the members resided only to learn that the NCD holders are not interested to pursue the matter of CIRP including the payment of any CIRP costs and the fees of the RP and the AR. The provisions of IBC, 2016 are clear that the communications during CIRP be made electronically. It was further learned that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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