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TMI Blog2024 (5) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Appellant by the Adjudicating Authority. As per Circular no. IBBI/CIRP/023/2019 dated 14.08.2019, Form No. IP1 is regarding pre-assignment which provides that this includes consent to accept assignment of an IP as IRP/RP/Liquidator/Bankruptcy Trustee, the details of IP and the applicant, the details of the person which will undergo the process, terms of consent, terms of engagement, filing of application before AA and withdrawal before admission, etc. to be filed within three days of the relevant date - In the present case, the relevant date was the date when the alleged consent was given by the Appellant i.e. 29.08.2023 when it had sent written consent to the Adjudicating Authority and the SCC as alleged and it was incumbent upon the Appellant to have it uploaded within three days on the portal of the IBBI which is again conspicuous by its absence. Thus, in such circumstances, it is apparent that the Appellant had not given any written consent on 29.08.2023 as alleged rather no written consent has been given in terms of Regulation 31A(11) of the Regulations which is required to be given on Form AA of Schedule II of the CIRP Regulations, therefore, there is no error in the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar Jain : This appeal is directed against the order dated 12.01.2024, passed by the Adjudicating Authority (National Company Law Tribunal, Ahmadabad Bench At Ahmadabad) partly allowing the application bearing I.A No. 1230/AHM/2023 filed in C.P. (IB)/37/AHM/2017 appointing Mavent Restructuring Services LLP (Respondent No. 2 herein) as the liquidator of the Corporate Debtor. 2. In brief, PSL Limited (Corporate Debtor) filed an application bearing C.P. (IB)/37/AHM/2017 under Section 10 of the Insolvency and Bankruptcy Code, 2016 (In short Code ) for the initiation of Corporate Insolvency Resolution Process (in short CIRP ) on account of incapacity to discharge its obligation towards the creditors. 3. This application was admitted on 15.02.2019, CIRP was initiated against the Corporate Debtor and Nilesh Sharma was appointed as the Interim Resolution Professional (in short IRP ) of the Corporate Debtor. 4. The IRP constituted the Committee of Creditors (in short CoC ) on 16.03.2019. The CoC in its 5th meeting of the CoC held on 22.08.2019 passed a resolution with a voting share of 88.12% to appoint Nitin Jain, designated partner of the Appellant as the Resolution Professional (in shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the liquidation estate of the Corporate Debtor. 13. The liquidator filed MA (CM No. 9111 of 2022) for stay on proceedings before the Adjudicating Authority of the PMLA under OC No. 1594 of 2021 related to confirming the provisional attachment order dated 02.12.2021. The stay was granted by the Hon ble Delhi High Court on the order dated 02.12.2021. The Liquidator sought permission to proceed with the sale of the assets, not covered by the provisional attachment order dated 02.12.2021, which was granted by the Hon ble Delhi High Court on 02.05.2022, allowed the liquidator to proceed with the sale of unattached assets, permitting the utilization of the sale proceeds to compensate unpaid workmen and employees. The liquidator thereafter conducted the sale of the assets not covered by the provisional attachment order on 03.06.2022 which was successfully completed. 14. The Liquidator filed an application i.e. I.A. No. 9 of 2022 for exclusion of the time period from 18.03.2021 till 02.03.2021, being the period during which the liquidator could not proceed with distribution/realisation of assets of the Corporate Debtor. while this application was pending, the successful auction pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prospective buyer withdrew their proposal to acquire the Corporate Debtor as a going concern. After noticing the same in the 28th meeting, the SCC discussed this development and resolved that the liquidator should proceed as per the guidelines established in the 26th meeting of SCC, however, due to the intricate and complex nature of the case, the liquidator due to personal problems brought to the notice of the SCC that he is not in a position to devote much time to the liquidation and gave a proposal that after the amendment notified in the IBBI (Insolvency Professional) Regulation 2016 on 28.09.2022, the Insolvency Professional Entity (IPE) can also act as an IP (Insolvency Professional), therefore, the present Appellant may be appointed as the liquidator. The minutes recorded is as under:- The Liquidator in furtherance to the discussions held in the above-mentioned agenda items mentioned that he has been working for this case from nearly last 4 years. However, due to some personal difficulty arising on account of health issues of his mother, who is not well for last few months and suffering from multiple medical issues, he may not be able to dedicatedly work in this case as PSL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the liquidator, inter alia, on the ground that there was non-compliance of Regulation 31A of the Regulations as the mandatory written consent form, as stipulated in Form AA Schedule II has not been filed before the Adjudicating Authority and the same was not attached with the application by the Liquidator (previous liquidator) and because of ineligibility of the Appellant to act as an liquidator in accordance with the Regulation 3 of the Regulations. 22. Counsel for the Appellant has submitted that there are two fold requirements of Regulation 31A(11) of the Regulations, namely, that there must be a resolution to replace liquidator with minimum voting percentage of 66% which has been duly complied with because the SCC in its 28th meeting appointed the Appellant as the liquidator with voting share of 81.4% and that there must be a written consent in Form AA by the proposed liquidator to act as the liquidator which was duly signed on 29.08.2023 by the Appellant prior to the filing of the application by the erstwhile liquidator which was though inadvertently could not be annexed with the application which is a curable defect and should not be taken as a disqualification of appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her impleaded \ Respondent No. 1 in its individual capacity. Though, as per the minutes of the 28th SCC meeting held on 24.07.2023, there were total 16 SCC members and Respondent No. 1 is not authorised by the SCC members to represent the SCC before this Tribunal in the present appeal. In support of his submissions, he has referred to a decision of the Hon ble Supreme Court in the case of Regen Powertech Pvt. Ltd. Vs. Giriraj Enterprises Anr., Civil Appeal No. 5985 6001 of 2023 to contend that in that case the RP was asked to maintain a neutral stand and the aggrieved person was CoC. He has also referred to a decision of this Tribunal in the case of Ganesan Ert. Liquidator of Kamachi Industries Vs. Prudent ARC Limited, CA (AT) (Ins) No. 396 of 2023 in which it has been held that the Liquidator does not have any personal right to continue in a liquidation process and the NCLT has inherent powers to replace the liquidator. 28. On merits, it is submitted that there is no error in the impugned order because of the violation of statutory provisions of law. In this regard, it is submitted that the IBBI vide its notification No. IBBI/2022- 23/GN/REG094 dated 16.09.2022 introduced Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal to file and rely on additional documents which were not part of the record before the Adjudicating Authority, therefore, it cannot be relied upon the documents without obtaining leave of this Court. 34. The Respondent has also challenged the authenticity and geniuses of the written consent dated 29.08.2023 which has been allegedly manufactured after the objection were raised before the Adjudicating Authority. 35. It is further argued that the Appellant has not annexed Form IP1 in support of its contention that written consent was furnished on 29.08.2023. As per the IBBI Circular No. IBBI/CIRP/023/2019 dated 14.08.2019 every insolvency professional is required to file Form IP1 within three days of giving consent to act as IRP/RP/Liquidator/Bankruptcy Trustee on IBBI Web Portal. It is submitted that this circular has been issued to prevent a situation like the one which has arisen in the present case in which consent dated 29.08.2023 was allegedly manufactured otherwise had it been already given as stated on 29.08.2023 then it should have been uploaded on the portal of the IBBI within three days which in fact has not been done. 36. In the end, it is submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... professional. b. I am not subject to any disciplinary proceedings initiated by the Board or the Insolvency Professional Agency. c. I do not suffer from any disability to act as a resolution professional. d. I am eligible to be appointed as resolution professional of the corporate debtor under regulation 3 and other applicable provisions of the Code and regulations. e. I shall make the disclosures in accordance with the code of conduct for insolvency professionals as set out in the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016; f. I am having the following processes in hand: Sl. No. Role as No. of Processes on the date of Consent 1 Interim Resolution Professional 2 Resolution Professional of a. Corporate Debtors b. Individuals 3 Liquidator of a. Liquidation Processes b.Voluntary Liquidation Processes 4 Bankruptcy Trustee 5 Authorised Representative 6 Any other (Please state) Date: Place: ( Signature of the insolvency professional ) Registration No. ....... 40. Regulation 31A(11) of the Regulations categorically provides for a written consent prior to the filing of the application for replacement of the liquidator. It is an admitted fact that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch circumstances, it is apparent that the Appellant had not given any written consent on 29.08.2023 as alleged rather no written consent has been given in terms of Regulation 31A(11) of the Regulations which is required to be given on Form AA of Schedule II of the CIRP Regulations, therefore, there is no error in the finding recorded by the Adjudicating Authority in this regard. 45. The argument of the Appellant that if the written consent was not given then at the most it is a defect which is curable but the judgment relied upon in this regard in the case of Tek Travels Pvt. Ltd. (Supra) is not applicable because a written consent to act either as the IRP/RP or the liquidator is a mandatory requirement under the law which has to be obtained before the application is filed. 46. The next submission of the Appellant is that the Adjudicating Authority has committed an error in appointing the Respondent No. 2 as the liquidator though it was not approved by the SCC, in this regard, reference may be had to the decision of this Court in the case of CA. V. Venkata Sivakumar Vs IDBI Bank Limited, CA (AT) (CH) (Ins) No. 269 of 2022 in which it has been held that combined reading of above ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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