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TMI Blog2023 (4) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the resolution of the CoC for liquidation. The adjudicating authority considered that no resolution plan was pending before CoC and that the adjudicating authority did not receive any resolution plan under sub-section (6) of Section 30 of the I B Code, 2016. When under section 33(1)(a), the Adjudicating Authority has power to order for liquidation when no resolution plan is submitted to it, it implies that the Adjudicating Authority has to only see whether any resolution plan has come up before it for approval prior to the order for liquidation under section 33(1)(a). As no resolution plan is received by the Adjudicating Authority, the questions whether CoC has resolved for liquidation or whether there is no coordination between RP and CoC, are immaterial for the Adjudicating Authority to order for liquidation u/s 33(1)(a). There are no reason to reject the request made by the RP to order for liquidation of the Corporate Debtor - application allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... factories of the CD to conduct the due diligence and requested for extension of 30 days to submit the resolution plan. As such, the CoC approved for extension of 45 days and further allowed the extension period for submission of resolution plan by 30 days i.e. on 24/04/2020. Extension of 45 days for CIRP was sought for and obtained from the adjudicating authority. The RA was, still, unable to visit the manufacturing units of the company due to Covid-19 and, hence, time was extended till 31/07/2020, on which date, the resolution plan was received and CoC and RA discussed and negotiated the terms of the resolution plan in multiple CoC meetings. The CoC did not accept the resolution plan since it was not in compliance with the conditions under the RFRP since it was a conditional plan and no revised plan was received from the RA. vi) Considering Covid-19, exclusion of 135 days from the CIRP was sought for and obtained. Further extension of 62 days was also obtained. In the 16th CoC meeting, it was decided that considering the object of the Code to keep the CD as a going-concern and maximise the value for all the stakeholders, CoC members informed the RP that they have received an OT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly. In the said application, it is stated that the exclusion is sought for due to the OTS submitted by CD. But, the said application was rejected on the ground that OTS is a subject matter of the CD and SBI and since there is no resolution plan pending before CoC and RP, the application was dismissed as not maintainable. He submits that the RP, without adhering to the resolution passed in the 18th CoC meeting, in the absence of consent from CoC, arbitrarily filed this IA, seeking for liquidation of CD. Opposing the stand taken by the RP, the CoC filed IA No. 97 of 2021 seeking to extend time line for conducting CIRP, which indicates that CoC is not in favour of the liquidation and that there is no coordination between the CoC and the RP. So long as the CD is under resolution process, the CoC takes decisions of the CD collectively and the RP should strictly adhere to such decisions taken by the CoC. The RP, since 11/01/2021, did not conduct CoC meetings. He contravened the mandatory IBBI Regulation 40 in respect of filing Form 7 i.e. CIRP status report of the CD. Pendency of the application filed u/s 33(1) for adjudication will not become a waiver for RP to file CIRP status report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore CoC, even in the absence of a resolution. 7. The ld. Counsel for the respondent by relying on the order passed in IA No.97 of 2021, which is dismissed as infructuous considering that the CIRP was extended, seeks to dismiss this IA. I.A No. 97 was filed by the CoC seeking to extend the time line for CIRP. I.A. No. 96 of 2021 was filed by the RP prior to 97 of 2021 seeking for liquidation. Considering that the CIRP was already extended, IA 97 of 2021 was dismissed. The ld. Counsel for the respondent submits that with the same analogy, this Application becomes infructuous since the CIRP was extended till 31/03/2022, while, this application is filed prior to 31/03/2022. 8. The question now before us is, whether an order for liquidation can be passed in this I.A. No. 96 of 2021 since it is still pending before us. The ld. Counsel for the respondent also raised another objection stating that there is no resolution passed by the CoC and that there is no coordination between the RP and the CoC and in such circumstances, no order for liquidation can be made. 9. As regards the second objection, ld. Counsel for the petitioner relies on the order of the NCLT, Hyderabad in I.A. No. 114 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 12 or the fast track corporate insolvency resolution process under section 56, as the case may be, does not receive a resolution plan under sub-section (6) of section 30; or (b) rejects the resolution plan under section 31 for the noncompliance of the requirements specified therein, it shall-- (i) pass an order requiring the corporate debtor to be liquidated in the manner as laid down in this Chapter; (ii) issue a public announcement stating that the corporate debtor is in liquidation; and (iii) require such order to be sent to the authority with which the corporate debtor is registered." 11. The ld. Counsel for the respondent draws our attention to clause (2) of section 33, which is as under: "(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 approved by not less than sixty-six percent 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 subsection (1)." 12. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er as laid down in Chapter III of Part II of the I&B Code, 2016; (ii) In the petition, the name of Mr. Ram Ratan Kannogo is mentioned for appointment of R.P., but, it can be seen that there is no resolution passed by the CoC for his appointment. Apart from that, his name is not found in the of R.Ps of State of Telangana, which is circulated by Insolvency & Bankruptcy Board of India. Hence, this Adjudicating Authority hereby appoints Mr. Kondapalli Venkata Srinivas bearing IBBI Registration No. IBBI/IPA001/IPP00520/2017- 2018/10945, his email id is : [email protected] and his mobile No. 9959223615 to act as Liquidator in the present case. He is further directed to file the Authorisation for Assignment (AoA) within 7 days from the date of this order. He shall issue a public announcement stating therein that the Corporate Debtor is in Liquidation; (iii) The moratorium declared under section 14 of the I&B Code, 2016, shall cease to have effect from the date of the order of Liquidation; (iv) Subject to section 52 of the I&B Code, 2016, no suit or other legal proceedings shall be instituted by/or against the Corporate Debtor. However, a suit and other legal proceedings m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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