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TMI Blog2023 (12) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order dated 31.08.2023 by which order Adjudicating Authority has allowed the application for liquidation and directed for liquidation. When this appeal was filed this Tribunal has passed following interim order on 18.09.2023: "18.09.2023: Learned counsel for the Appellant submits that decision of the CoC to liquidate was with reasons and the Adjudicating Authority erred in rejecting the application for liquidation. It is submitted that in pursuance of the impugned order, CoC is to meet today and it is likelihood that Form G be issued. Issue notice. Learned counsel for Respondent No.2 has appeared. Let Reply be filed by the Respondents within two weeks. Rejoinder be filed within two weeks thereafter. List this Appeal on 16.10.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering with the said order. 6. Learned Counsel for the appellant submits that the Resolution Professional after passing of the interim order passed by this Tribunal has published Form-G but no EOI was received, thereafter another application has been filed by Resolution Professional for liquidation. 7. Learned Counsel for the Respondent refuting the submission of Learned Counsel for the Appellant contends that respondent has already challenged the order admitting Section 9 application in the Supreme Court where SLP was dismissed and review petition was also dismissed but a Curative Petition has been filed which is pending consideration. He further submits that Resolution Professional has filed another application for liquidation subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eby approved for liquidation of the Corporate Debtor namely 'Metro Jet Airways Training Private Limited'. "RESOLVED FURTHER that Mr. Bhim Sain Goyal, Resolution Professional, be and is hereby authorised to file the requisite application before the Adjudicating Authority, for its orders for liquidation of Corporate Debtor"." 10. Learned Counsel for the Appellant has placed reliance on the Judgment of this Tribunal in three members Bench Judgment in Company Appeal (AT) (Ins.) No. 1062 of 2022 - Sreedhar Tripathy vs. Gujarat State Financial Corporation & Ors. where this Tribunal after noticing Section 33 sub section 2 of the IBC Code, 2016 laid down following in paragraph 6 & 7: 6. Section 33 Sub-section (2) of the I&B Code which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and all machinery has become scrap, even the building is in dilapidated condition and the CIRP will involve huge costs. We are not convinced with the submission of learned counsel for the Appellant that the CoC's decision is an arbitrary decision. CoC is empowered to take decision under the statutory scheme and when in the present case the decision of the CoC for liquidation has been approved by the Adjudicating Authority, we see not good ground to interfere at the instance of the Appellant. However, we make it clear that the decision taken by the CoC was in the facts of the present case and it cannot be said that whenever decision is taken for liquidation the same is not open to judicial review by the Adjudicating Authority and this Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IRP has received the 'Claim' only from one Operational Creditor, he is still required to constitute the CoC with the sole Operational Creditor. 6. This Tribunal is of the earnest view that there is no provision in the Code for the Corporate Debtor to constitute the CoC with a single Operational Creditor, when it is seen from the record that despite the public announcement being made inviting claims from its stakeholders, the Appellant has not received a single 'Claim' from the date of initiation of the Corporate Debtor into CIRP. As the CoC itself is not constituted and in the light of the fact that not a single 'Claim' was received by the IRP even after the public announcement, as well as the fact that the Corporate Debtor Company has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court is binding by this tribunal and Adjudicating Authority, in event any such order is passed in the Curative Petition. 18. In so far as coming to the subsequent application filed by the Resolution Professional, the RP has filed the application after issuance of Form-G after the interim order passed by this tribunal and as submitted by Learned Counsel for the appellant even after the Form-G no EOI was received. 19. Be as it may, in view of the order which we are passing in this appeal the subsequent application has become infractuous and has to be closed. 20. In view of the foregoing decision we allow this appeal, set aside the order passed by Adjudicating Authority dated 31.08.2023 and allow the I.A No. 543/JPR/2022 and direct for li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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