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TMI Blog2022 (12) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... aws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 Vide Notification No. IBBI/2016-17/GN/REG001, dated 21st November, 2016 will prevail over Regulation 7A of IBBI Insolvency Professional Regulation 2016? HELD THAT:- The Appellant himself admitted that application for AFA was filed on 31.12.2019 and the same was rejected on 14.01.2020 hence this Appellate Tribunal feels that the argument the Appellant that he has deemed to have been received the AFA or renewed within 15 days does not seems to be correct - the appellant cannot claim that there was no requirement of issue of fresh AFA for his assignment as the Liquidator. The assignment as the Liquidator to which the Appellant got confirmed on 29-05-2020, is beyond the prescribed threshold date i.e. 31-12-2019. Therefore, this is non-compliance of the regulatory provisions. The Appellant got authorized and valid AFA by the 3rd Respondent only on 30.12.2020 which is way beyond the date of his appointment/assent as liquidator. Therefore, it is clear that as per Regulation 7A of IBBI (Resolution Professional) Regulation 2016, the Appellant did not hold valid AFA on the date of acceptance of the Assign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B/2018, by the Adjudicating Authority , [ National Company Law Tribunal , Chennai Bench (Court II)], whereby, the Adjudicating Authority , dismissed the Petition , filed under the Insolvency Bankruptcy Code, 2016 (in short I B Code , 2016). Brief Facts: 2. Mr. V. Venkata Sivakumar is the Appellant- in-person herein and is an Insolvency Professional who was the Liquidator of The Jeypore Sugar Company Ltd. ( Corporate Debtor ) and was subsequently replaced by the Adjudicating Authority on the application of the 1st Respondent vide impugned order dated 01.07.2022 in IA/815/IB/2020 in CP/1307/IB/2018. IDBI Bank Limited is the 1st Respondent herein and is a Secured Financial Creditor of the Corporate Debtor having a stake of 43.57% of the Liquidation Process . Insolvency Bankruptcy Board of India ( IBBI ) is the 2nd Respondent and is the Regulator , under I B Code, 2016. Indian Institute of Insolvency Professionals of ICAI (IIIPI) is the 3rd Respondent herein which is a professional body authorised to issue Authorisation for Assignment (in short AFA ). 3. The Jeypore Sugar Company Ltd. ( Corporate Debtor ) was incorporated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and on the same date the Appellant informed that he is not interested in getting empanelled with the 1st Respondent due to several assignment with the Appellant . The 1st Respondent again sent an email on 06.08.2020 to the Appellant to furnish the copy of AFA since he has been continuing on the panel of the bank. However, the 1st Respondent did not get any response from the Appellant . It is case of the 1st Respondent that he approached the 3rd Respondent and checked IDBI website and came to know that the Appellant did not have valid AFA . 6. On coming to the knowledge that the Appellant did not have AFA on the relevant date and has suppressed the facts, the 1st Respondent moved an application to the Adjudicating Authority for Appellant s removal in IA/815/IB/2020 in CP/1307/IB/2018 and the Adjudicating Authority vide impugned order dated 01.07.2020 replaced the Appellant by new liquidator Mr. S. Hari Karthik under provision of Section 33 34 of I B Code, 2016 r/w Section 16 of General Clauses Act, 1897 r/w Section 276 of the Companies Act, 2013 . 7. Aggrieved by the impugned order , the Appellant has preferred the present appeal before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the matter is solved by issuing fresh AFA, this petition becomes infructuous and reserved the matters for orders. The Appellant stated that to his dismay, the Adjudicating Authority pronounced judgment removing him from the Liquidator of the Corporate Debtor contrary to oral orders made in the open court. The Appellant stated that this is clearly a case of judicial misconduct. 12. The Appellant mentioned that his whole intention was to get best value of the assets of the Corporate Debtor and attempted to pay 100% of the claims of stakeholders and this fact was appreciated in 1st, 7th 9th meeting of Stakeholder Consultation Committee ( SCC ). The Appellant stated that despite his best efforts, due to complications in the process, the Appellant had to file SR/217/2020 seeking extension of Corporate Insolvency Resolution Process period which was dismissed by the Adjudicating Authority and pronounced for liquidation by appointing the Appellant as the Liquidator . The Appellant further submitted that thereafter the 1st Respondent ( IDBI Bank ) started complete non-cooperation and filed several petitions for the removal of the Appellant . 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex-Promoters since they were hit by Section 29(A) of the I B Code, 2016. 17. The Appellant submitted that Regulation 7A of IBBI Insolvency Regulation 2017 came into effect from 31.12.2019 and his application for granting AFA filed with 3rd Respondent on 31.12.2019 and in terms of Clause 12(A) (5) Insolvency and Bankruptcy Board of India (Model Bye -Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 Vide Notification No. IBBI/2016-17/GN/REG001, dated 21st November, 2016 the AFA was deemed to have been received by him since he did not receive any intimation from 3rd Respondent by 14.01.2020. 18. The Appellant also pointed out that the Ex- Promoters filed IA No.579 of 2022 on 31.05.2022 making serious allegations against the Appellant which was heard and order was reserved by the Adjudicating Authority without giving opportunity to the Appellant of being heard and granted interim stay in disregard to Hon ble Orissa High Court. The Appellant further stated that he had challenged the order vide CA(AT) (Ins.) No. 236 of 2022 before this Appellate Tribunal and the order was passed by the Adjudicating Authority was quashed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode, 2016 is a complete Code and its Regulation 3 of Liquidation Process Regulations clearly specifies ground for the removal of Liquidator . In such circumstances applying Section 16 of General Clauses Act, 1897 r/w Section 276 of the Companies Act, 2013 is bad in law. The Appellant further submitted that this Appellate Tribunal has gave the ruling in the judgement of this Appellate Tribunal in Kiran Shah Vs. Punjab National Bank CA (AT)(Ins.) No. 102 of 2020 where it has been held that there is no provision in the code for removal of liquidator based on the complaint of a financial creditor who is only a claimant in liquidation. The Appellant further accused that CMD and General Manager of the 2nd Respondent i.e. IDBI Bank Ltd. were against the Appellant since he did not approve the Resolution Plan from ineligible applicants and also accused that both CMDs and General Manager of 1st Respondent were acting against the economic interest of the country and the Financial Interest of the IDBI Bank Ltd. itself. 22. The Appellant stated that as regard the third ground i.e Personal attack on Appellant s character for continuing as a liquidator especially in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led an Appeal before the 2nd Respondent and also moved Hon'ble Madras High Court vide W.P.13229 of 2020 and in Para 3 of the Impugned Order: As stated earlier, the aforesaid Regulation 7A of the IP Regulations and Regulation 12A of the Model Bye-Laws IPA Regulations are under challenge in this writ petition. the Petitioner states that he applied for an, AFA 2 14 in terms of Regulation 7A of the IP Regulations on 31-12-2019 and his application was rejected on 14-01-2020, inter alia, on the ground that he had not paid the requisite fee as per Regulation 7(2)(ca). In spite of providing proof of payment and the acknowledgment dated 28- 04-2019, in that connection, his application Was rejected. The Petitioner further states that the rejection of the application for AFA was communicated to him on 16.07.2020 when the third Respondent informed the Registry of the National Company Law Tribunal at Chennai that the Petitioner was not authorized to act as an IP. 27. The Appellant resubmitted that 2nd and 3rd Respondent issued show cause notice for violation of Regulation of 7A of IBBI Insolvency Regulation 2017 , however it has been disposed of the same, by imposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same discloses the fact that the Resolution Professional is willing to act as the Liquidator of the Corporate Debtor, if appointed by this Tribunal. In the circumstances, V. Venkata Sivakumar, having Reg.No.IBBI/IPA-O001/IP-PO0184/2017-18/1 0852 is appointed as the Liquidator of the Corporate Debtor to carry out the liquidation process subject to the following terms of the directions. a) The Liquidator shall strictly act in accordance with the provisions of IBC 2016 and the attendant Rules and regulations including Insolvency and Bankruptcy (Liquidation Process) Regulations, 2017 as amended upto date enjoined upon him. 31. The Learned Counsel for the Respondents stated that an annual review for the performance of Insolvency professional empanelled with it was done and in the process the Appellant was asked to provide self declaration that all the documents and information submitted by the Appellant to the Respondents as per law are valid, effective and in full force vide the Appellant s letter dated 21.07.2020 to the 1st Respondent. However, during the course of this exercise, it came to the notice that the Appellant did not have a valid AFA as mandatory req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fact was also confirmed by this Appellate Tribunal in CA (AT) (Ins.) No. 754 of 2020 vide order dated 07.09.2020 where the Adjudicating Authority gave the ruling that the If there is any irregularity, as contended by the learned counsel for the Appellant, he shall be at liberty to bring it to the notice of the Adjudicating Authority who may have a re-look at the appointment of Liquidator so far as the authorisation of Respondent No. 1 is concerned and pass appropriate order . 35. The Learned Counsel for the Respondents refuted the issue raised by the Appellant regarding non application of Section 7A of IBBI (Insolvency Professional) Regulation 2016 and stated that it is mandatory for Insolvency Professional to hold a valid AFA on the date of acceptance or commencement of assignment after 31.12.2019. The Learned Counsel for the Respondents further stated that it is admitted fact that the Appellant did not have valid AFA on the date of acceptance of the assignment. The order of the Adjudicating Authority was very clear that the Liquidator shall strictly act in accordance with the provisions of the I B Code, 2016 and Rules Regulations as amended up to dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional validity of Regulation 7A of IBBI Insolvency Professional Regulation 2016 r/w bye laws12A Insolvency and Bankruptcy Board of India (Model Bye -Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016, claiming that Article 14, 19 21 of the Constitution are violated by the Regulations. The Learned Counsel for the Respondents submitted that after detailed examinations including going through the legality and citing several judgements, the Hon ble Madras High Court dismissed Writ Petition of the Appellant . The Learned Counsel for the Respondents further submitted that it is therefore, clear that all actions taken by the Respondents is strictly in accordance with the law and therefore the arguments raised by the Appellant are only to derail the process of liquidation. 39. The Learned Counsel for the Respondents pointed out that the Appellant himself has admitted in IA/815/2020 before the Adjudicating Authority that his AFA was issued by 3rd Respondent only on 30.12.2020, whereas he has taken the assignment on 29.05.2020 i.e. much prior to the date of AFA in his favour. The Learned Counsel for the Respondents repeated that after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the Adjudicating Authority removing the Appellant from liquidator and authorised the 1st Respondent to defend for appeal by the Appellant on their behalf and agreed to share legal expenses including advocate and senior counsel s fee as per lenders share in liquidation claim. The Learned Counsel for the Respondents stated that this clearly shows the deep sentiments of the lenders who have absolutely no trust in the Appellant . The Learned Counsel for the Respondents also submitted that there can not and should not be any vested interest of the Liquidator to continue if he breaches the provisions of the I B Code, 2016 and lost the faith and confidence of the lenders. 42. The Learned Counsel for the Respondents submitted that the Appellant has unsuccessfully challenged before the Hon ble Madras High Court the validity of Regulation 7A of IBBI (Insolvency Professional) Regulation 2016 as well as Regulation 12A of Insolvency and Bankruptcy Board of India (Model Bye -Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 Vide Notification No. IBBI/2016-17/GN/REG001, dated 21.11.2016 and failed miserably and writ petition was dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad valid Authorisations for Assignment ( AFA ) on the date of his appointment as the Liquidator of the Corporate Debtor ? (b) Whether, the AFA was deemed to have been issued in terms of Regulation 12A of the Insolvency and Bankruptcy Board of India (Model Bye -Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 Vide Notification No. IBBI/2016-17/GN/REG001, dated 21st November, 2016. (c) Whether, the AFA issued subsequent to taking up assignment by the Appellant , absolve Appellant of meeting requirement of Regulation 7A of IBBI Insolvency Professional Regulation 2016. (d) Whether, the Regulation 12A of the Insolvency and Bankruptcy Board of India (Model Bye -Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 Vide Notification No. IBBI/2016-17/GN/REG001, dated 21st November, 2016 will prevail over Regulation 7A of IBBI Insolvency Professional Regulation 2016. (II) Whether the order passed by Hon ble Madras High Court in W.M.P. No. 5088 of 2021 in W.P. No. 4458 of 2021 WP No. 4458 of 2021 has any bearing on the current case? (III) Whether the Adjudicating Authority can remove the Liquidator ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olvency Professional Agencies) Regulations, 2016 (1) The Agency, on an application by its professional member, may issue or renew an authorisation for assignment. (2) A professional member shall be eligible to obtain an authorisation for assignment, if he- (a) is registered with the Board as an insolvency professional; (b) is a fit and proper person in terms of the Explanation to clause (g) of regulation 4 of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016; (c) is not in employment; (d) is not debarred by any direction or order of the Agency or the Board; (e) has not attained the age of seventy years; (f) has no disciplinary proceeding pending against him before the Agency or the Board; (g) complies with requirements, as on the date of application, with respect to- (i) payment of fee to the Agency and the Board; (ii) filings and disclosures to the Agency and the Board; (iii) continuous professional education; and (iv) other requirements, as stipulated under the Code, regulations, circulars, directions or guidelines issued by the Agency and the Board, from time to time. (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is thus, natural that the Appellant needs to comply to the requirements of the particular appointment. In this case, the criteria need to be met at the different stages and at the time of liquidation, the Appellant is duty bound to comply with the Regulations. It has already been seen that the Regulation 7A of IBBI (Insolvency Professional) Regulation 2016 mandated the Appellant to have a valid AFA . It is the case of the Appellant that he need not to comply with Regulation 7A in strict sense since he had applied for AFA well in time on 29.12.2019 much before accepting the assignment of the Liquidator . As per Regulation 12A of the Insolvency and Bankruptcy Board of India (Model Bye -Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 Vide Notification No. IBBI/2016-17/GN/REG001, dated 21st November, 2016, the AFA was deemed to have been received on expiry of 15 days from the date of application. The Appellant received the communication of rejection of his application only on 16.07.2020 on telephone, hence the Appellant was under valid assumption of having received deemed approval of the AFA and therefore, did not contravene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied retrospectively in the absence of any such provisions in the law. In the case of Tax Officer, Alleppey vs MC Ponnoose Ors. (1969) 2 SCC 351 at paragraph 5, it was held that in absence of any Rule/Regulation, there can be no retrospective application for a statute, wherein it has been as follows: 5....... The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it be deposited for the befit of free legal aid or other noble public causes and pass. (3) WMP. NO. 5086 of 2021 To dispense with the Impugned order of 1st Respondent Insolvency and Bankruptcy Board of India in No. BBI/DC/61/2020 Dated 17th Dec 2020 and in the consequential Impugned order of the 2nd Respondent IIIPA/ ICAI in DCNo. IIIPI/ DC/ 29/ 2020-21 dated 01.12.2020 (4) WMP No. 5088 of 2021 To issue an order of ad interim injunction restraining all the Respondents, their servants and agents or any other person from taking any coercive action on account of the impugned orders passed in DCNo. IIIPI/DC/29/2020-21 dated 01.12.2020 and No. IBBI/DC/61/2020 Dated 17th Dec 2020 pending disposal of this writ petition. Order : These petitions coming on for orders upon perusing the petitions and the respective affidavits filed in support thereof and upon hearing the arguments of CA.V. VENKATA SIVA KUMAR Party in person for the petitioner the court made the following order :- The petitioner is aggrieved by the impugned order dated 01.12.2020, directing him to pay a penalty of Rs. 10,000/- by the first respondent on account of the alleged violation of Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Appellant was required to have valid AFA before taking any assignment. Thus this Appellate Tribunal do not find prima-facie any restrain on the Adjudicating Authority to adjudicate in this case and no conflict is found. 48. Issue No. (III) Whether the Adjudicating Authority can remove the Liquidator ? To be able to understand Whether the adjudicating authority can remove a Liquidator, we need to understand where resides the power to remove the a Liquidator. I B Code, 2016 does not explicitly state the grounds for removing the liquidator. In the absence of specific provisions, we may resort to Section 33 34 of the I B Code, 2016 and Section 276 of the Companies Act, 2013, which provides for the removal and replacement of liquidators on various grounds. Reference can be made to Section 16 of the General Clauses Act, 1897, which states as follows: 16. Power to appoint to include power to suspend or dismiss. Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted by or against the corporate debtor: Provided that a suit or other legal proceeding may be instituted by the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority. (6) The provisions of sub-section (5) shall not apply to legal proceedings in relation to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (7) The order for liquidation under this section 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. 34. Appointment of liquidator and fee to be paid.- (1) Where the Adjudicating Authority passes an order for liquidation of the corporate debtor under section 33, the resolution professional appointed for the corporate insolvency resolution process under 2[Chapter II shall, subject to submission of a written consent by the resolution professional to the Adjudicatory Authority in specified form,] act as the liquidator for the purposes of liquidation unless replaced by the Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any liquidator is responsible for causing any loss or damage to the company due to fraud or misfeasance or failure to exercise due care and diligence in the performance of his or its powers and function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approved the statement of Woodroffe On Receivers, Fourth Edition, that the power to terminate flows naturally and as a necessary sequence from the power to create. In other words, it is a necessary adjunct of the power of appointment and is exercised as an incident to, or consequence of that power; the authority to call suck officer into being necessarily implies the authority to terminate his functions. This Appellate Tribunal also notes that in recent judgement passed by Principal Bench, NCLAT vide order dated 13.10.2022 in Company Appeal (AT) (Ins.) No. 1234 of 2022 as held : The Liquidator does not have any personal right to continue in the Liquidation Process and the reasons which have been noted in the order are sufficient to exercise even the inherent power by NCLT to replace the Liquidator. It is not a fit case to interfere in exercise of our Appellate Jurisdiction. [emphasis supplied] This clearly establishes that, no Liquidator, has any personal rights , to continue in Liquidation and the Adjudicating Authority , can order for Replacement of the Liquidator , recording sufficient reasons, as per Law . Further, since the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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