9911796707
TMI Blog2024 (10) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of the present case, it is clear that former Director of the Corporate Debtor, Ashish Mohan Gupta, himself has challenged the Liquidation Order and also sought to submit a Scheme which were all rejected up to this Tribunal. The Application which has been filed by the Appellant No. 1 under Section 12A was filed after more than three years from Liquidation commencement, which was at the instance of the former Director Aashish Mohan Gupta, which has been clearly noticed by the Adjudicating Authority in the Impugned Order - the Adjudicating Authority did not commit any error in rejecting application filed by the Appellant. Whether in the facts of the present case, when the Liquidation commenced on 12.09.2017, it was obligatory for the Liquidator to constitute the SCC as per the Regulation 31A inserted in Liquidation Regulation with effect from 25.07.2019? - HELD THAT:- The Liquidation commencement date in the present case is 12.09.2017. The provision for constitution of SCC was inserted in IBBI (Liquidation Process) Regulations, 2016, by Notification dated 25.07.2019 with effect from 25.07.2019, which required the Liquidator shall constitute the SCC. An explanation to Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as passed by the Adjudicating Authority. iii. The Respondent No. 2 Mr. Ashish Mohan Gupta, the Promoter and former Director challenged the Liquidation Order, which Appeal was dismissed by this Tribunal on 26.04.2018. iv. In the Liquidation Proceeding, Liquidator issued an e-Auction Notice, former Director also filed an Application seeking stay of the sale on the ground that the Scheme under Section 230 of the Companies Act, 2013 (for short `The Act ) has been submitted by the former Director which needs to be considered, which Application was rejected on 23.08.2019 against which Order Comp. App. (AT) (Ins.) No. 875/2019 was filed which too was dismissed on 13.04.2021. Relying on the Judgment of the Hon ble Supreme Court in the matter of ` Arun Kumar Jagatramka Vs. Jindnal Steel Power Ltd. Anr. reported in 2021 SCC Online SC Court 220 , where it was held that former Director could not be eligible to flow the Settlement Scheme under Section 230 of the Act, keeping in view the ineligibility attached under Section 29A of the Code. v. The Appellant who claimed to be depositors of the Corporate Debtor has filed an Application on 24.05.2021, under Section 12A of the Code. I.A. No. 336/202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in 2018 SCC Online NCLAT 904, to support his submission that 12A Application is maintainable even in Liquidation Proceeding. Learned Counsel for the Appellant further submits that Liquidator is proceeding to sell the Assets of the Corporate Debtor without constituting a Stakeholders Consultation Committee (`SCC ). It is submitted that as per the Insolvency and Bankruptcy Board Liquidation Regulations as amended by Insolvency and Bankruptcy Board of India (Liquidation Process) (Second Amendment) Regulations, 2022, it was incumbent on the Liquidator to constitute the SCC and without constitution of SCC, no sale can be proceeded with. It is submitted that Sale Notice issued by the Liquidator without their being any constitution of SCC is again the IBBI (Liquidation Process) Regulations, 2016, and deserves to be set aside, and the Adjudicating Authority committed an error in rejecting the Application. 4 . Learned Counsel for the Liquidator refuting the submission of the Appellant submits that Application under Section 12A is not maintainable during Liquidation Process and further Liquidation commencement Order being 12.09.2017 i.e., much before Insolvency and Bankruptcy Board of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Scheme of Liquidation and the Liquidation Regulations do not contemplate any withdrawal under Section 12A. In this context, we may refer to Regulation 2B of the IBBI (Liquidation Process) Regulations, 2016, which provides for Compromise or Arrangement. Regulation 2B provides as follows. 2B. Compromise or arrangement . (1) Where a compromise or arrangement is proposed under section 230 of the Companies Act, 2013 (18 of 2013), it shall be completed within ninety days of the order of liquidation under [***] section 33: Provided that a person, who is not eligible under the Code to submit a resolution plan for insolvency resolution of the corporate debtor, shall not be a party in any manner to such compromise or arrangement. Provided further that the liquidator shall file the proposal of compromise or arrangement only in cases where such recommendation has been made by the committee under regulation 39BA of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016: Provided further that the liquidator shall not file such proposal after expiry of thirty days from the liquidation commencement date. (2) The time taken on compro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed with aforesaid observations. No cost. 11 . The observations made in Paragraph 5 by this Tribunal, where in the facts of the said case, where a Plan was already submitted on 178th day. The Court, however, dismissed both the Appeals but made an observation which is relied by the Appellant in Paragraph 5 that in view of Section 12A, even during the Liquidation period, if any person, not barred under Section 29A satisfy the demand of CoC then such person may move before the Adjudicating Authority by giving the offer which may be considered by the CoC . 12 . The above observation made by this Tribunal has not taken the Statutory Scheme which is delineated by Section 12A and Section 33 of the IBC Code. Liquidation Regulations 2016 which provides for Compromise and Arrangement has also not been placed before this Tribunal in the above case. We do not subscribe to the observation made by the Tribunal in Paragraph 5 that even during Liquidation period, any person can make an Application under 12A. 13 . Learned Counsel for the Appellant has also placed reliance on the Judgment of the Hon ble Supreme Court in the matter of `Lokhandwala Kataria Construction Private Limited Vs. `Nisus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance of the former Director Aashish Mohan Gupta, which has been clearly noticed by the Adjudicating Authority in the Impugned Order. We may notice Paragraphs 3 (iv) and (v),Adjudicating Authority also in Paragraph 5 has noticed that Union Bank of India which has 80.43% vote shares as stated before the Adjudicating Authority that Union Bank of India is not inclined to enter into any kind of settlement with Respondent No. 2. 16 . We are of the view that Adjudicating Authority for the reasons as noticed above did not commit any error in rejecting I.A. No. 336/2021 filed by the Appellant. Question No. 2 17 . As noted above, the Liquidation commencement date in the present case is 12.09.2017. The provision for constitution of SCC was inserted in IBBI (Liquidation Process) Regulations, 2016, by Notification dated 25.07.2019 with effect from 25.07.2019, which required the Liquidator shall constitute the SCC. An explanation to Regulation 31A of the IBBI (Liquidation Process) Regulations, 2016, has been inserted by Notification dated 08.04.2022 with effect from 20.04.2022, which explanation is clarificatory explanation, clarifying the ambit and scope of Regulation 31A, explanation as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
