9911796707
TMI Blog2024 (11) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Section 230(1) in addressing the issue of insolvency / sickness has diminished. The follow up process which has been provided under Sub Section (1) of Section 230, would only be necessary to be complied with when the process of Compromise or Arrangement, as envisaged under the Companies Act, 2013, becomes necessary and needs to be carried out. But, that would be only in a situation, when there is a failure on the part of the Liquidator in his attempt to sustain the functioning of the Corporate Debtor as a going concern, as sufficient provisions have been provided under the I B Code, 2016, and the IBBI (Liquidation Process) Regulations, 2016. Further, Regulation 2B under the Liquidation Regulations provides for Compromise / Arrangement within a limit of 90 days from the date of Order of Liquidation. The intent behind such provision is to give a chance for Compromise / Arrangement, before resorting to competitive bidding process for sale of the Corporate Debtor in the manner laid down in Regulation 32 of the said Regulations. In that light, it is only one more instrument in the hand of the Liquidator to keep the Company under Liquidation as a going concern. More important and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for R2 JUDGMENT ( Hybrid Mode ) Per : Justice Sharad Kumar Sharma , Member ( Judicial ) : 1. These are two Company Appeals, which had been respectively preferred by the Appellant, under Section 61 (1) of I B Code, 2016. The respective details of the Appeals are given hereunder: A). Company Appeal (AT) (CH) (INS) No. 305 / 2024, has been preferred by the Appellant being aggrieved against the Impugned Order of 19.07.2024, as it was rendered in IA(IBC)/416(CHE)/2024 in IBA/883/2019 of the NCLT, Chennai Bench. The consequential effect of the Impugned Order had resulted into the rejection of the application, thus preferred by the Appellant, whereby his prayer to declare the e-auction conducted on 31.01.2024 as null and void and to direct the 1st Respondent / Liquidator to consider the Scheme submitted by him was turned down, the decision of the Stakeholder Consultation Committee (SCC) to reject the said Scheme was affirmed on the grounds that it has been done on merits and with majority voting. B) The connected Company Appeal (AT) (CH) (INS) No. 306 / 2024, which has been preferred by the Appellant, seeks to challenge the Impugned Order of 19.07.2024, which has resulted into passing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CHE) / 2024 to confirm the sale of Corporate Debtor as a going concern, before the Hon ble NCLT which was approved by it on 19.07.2024. 5. Meanwhile, one minority Shareholder, the Appellant herein had submitted a Scheme of Arrangement on 18.10.2023. The same was deliberated upon and rejected by SCC on 31.01.2024 on grounds of the value offered being lower than Liquidation Value, no clarity on source of funds and unwillingness to derail the auction process which was parallelly going on. The minority Shareholder filed an application in IA(IBC)/416(CHE)/2024, before Hon ble NCLT to set aside the e-auction process and to direct the Liquidator to consider the Scheme submitted by him. It was rejected by the same order dated 19.07.2024. 6. The grievance of the Appellants in the instant Company Appeals, as against the two Impugned Orders which have been respectively rendered in the two Interlocutory Applications referred to hereinabove is that, in IA(IBC)/416(CHE)/2024 filed by him, the learned Adjudicating Authority rejected his prayer for consideration of the Scheme of Arrangements proposed by him under Section 230 of the Companies Act, 2013, without considering its merits and in IA(IBC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner set out under Section 230(1) of the Companies Act, 2013 and not by way of a meeting of the Stakeholders Consultation Committee, and accordingly, the Scheme submitted in the instant case, should have been approved or rejected, if at all required, only by the meeting of the Creditors which should have been called upon as per Rule 3 of the Company (Compromises, Arrangements and Amalgamations) Rules, 2016. 11. As against the aforesaid backdrop, the learned counsel for Respondent No. 1, who has filed his Counter Affidavit, has submitted that, as a consequence of the confirmation of the sale in an e-auction proceedings, the process under Regulation 32(e) 32A of the IBBI (Liquidation Process) Regulations, 2016, has already been completed, and hence, there was no necessity at this stage for consideration of Scheme submitted by the Scheme Proponent, as contemplated under Section 230 of the Companies Act, 2013. 12. According to the contentions raised by Respondent No. 1, he intends to submit that since the process under Regulation 32(e) 32A, contemplates sale of the Corporate Debtor, as a going concern, it meets the basic purpose and intention of the legislation and that the Scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detailed in S. Nos. 4 to 58 of their Acquisition Plan dt. 29.01.2024. c) To pass an order directing the statutory authorities involved in management of Corporate Debtor to modify their records by entering the successful bidder s name or as proposed by them 19. It is the Appellant s case that, the order which was passed confirming the sale of the Corporate Debtor as a going concern was contrary to the provisions contained under Section 230 (1) of the Companies Act, 2013, and hence, the same deserves to be set aside and as a consequence thereto, the confirmation of sale to the Successful Bidder deserves to be quashed, and directions be issued to consider the Scheme of Arrangement, under Section 230 of the Companies Act, 2013. 20. The matter has extensively been dealt with by the learned Adjudicating Authority and after considering the rival contentions, the learned Adjudicating Authority has recorded its finding, qua the implications as argued pertaining to the proceedings of IA(IBC)/416(CHE)/2024, with regards to the Scheme of Arrangements, as it was filed by the appellant, which was placed on record, contending that the application for consideration of his Scheme ought not to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt the corporate debt restructuring guidelines specified by the Reserve Bank of India, a statement to that effect; and (v) a valuation report in respect of the shares and the property and all assets, tangible and intangible, movable and immovable, of the company by a registered valuer. (3) Where a meeting is proposed to be called in pursuance of an order of the Tribunal under subsection (1), a notice of such meeting shall be sent to all the creditors or class of creditors and to all the members or class of members and the debenture-holders of the company, individually at the address registered with the company which shall be accompanied by a statement disclosing the details of the compromise or arrangement, a copy of the valuation report, if any, and explaining their effect on creditors, key managerial personnel, promoters and non-promoter members, and the debenture-holders and the effect of the compromise or arrangement on any material interests of the directors of the company or the debenture trustees, and such other matters as may be prescribed: Provided that such notice and other documents shall also be placed on the website of the company, if any, and in case of a listed compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f members, as the case may be, or, in case of a company being wound up, on the liquidator and the contributories of the company. (7) An order made by the Tribunal under sub-section (6) shall provide for all or any of the following matters, namely: (a) where the compromise or arrangement provides for conversion of preference shares into equity shares, such preference shareholders shall be given an option to either obtain arrears of dividend in cash or accept equity shares equal to the value of the dividend payable; (b) the protection of any class of creditors; (c) if the compromise or arrangement results in the variation of the shareholders rights, it shall be given effect to under the provisions of section 48; (d) if the compromise or arrangement is agreed to by the creditors under sub-section (6), any proceedings pending before the Board for Industrial and Financial Reconstruction established under section 4 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) shall abate; (e) such other matters including exit offer to dissenting shareholders, if any, as are in the opinion of the Tribunal necessary to effectively implement the terms of the compromise or arra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore BIFR in the event of any arrangement agreed to by the Creditors under Section 230 (6). With enactment of IBC, the process of Insolvency Resolution has been fast tracked and therefore, the significance of Section 230(1) in addressing the issue of insolvency / sickness has diminished. 23. We are of the view that, the follow up process which has been provided under Sub Section (1) of Section 230, would only be necessary to be complied with when the process of Compromise or Arrangement, as envisaged under the Companies Act, 2013, becomes necessary and needs to be carried out. But, that would be only in a situation, when there is a failure on the part of the Liquidator in his attempt to sustain the functioning of the Corporate Debtor as a going concern, as sufficient provisions have been provided under the I B Code, 2016, and the IBBI (Liquidation Process) Regulations, 2016. Further, Regulation 2B under the Liquidation Regulations provides for Compromise / Arrangement within a limit of 90 days from the date of Order of Liquidation. The intent behind such provision is to give a chance for Compromise / Arrangement, before resorting to competitive bidding process for sale of the Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpromise / Arrangement under Section 230 is not to be put on a higher pedestal; rather, since it is a carryover from an earlier legal regime, it is sought to be accommodated within the tight-time frame of I B Code, 2016. On the other hand, the sale of the Corporate Debtor as a going concern under Section 32(e) 32A is more transparent and effective; therefore, the sale of the Corporate Debtor as a going concern will have precedence, rather than resorting to the Scheme of Compromise under Section 230 (1) of the Companies Act, 2013. 25. More important and relevant for the purposes of the instant case, would be the provisions contained under Regulation 32A, which provides for that, where the Committee of Creditors, has recommended the sale of the Corporate Debtor, under Clause (e) or (f) of the Regulation 32 or where the Liquidator is of the opinion that the sale of the Corporate Debtor under 32(e) or 32(f) will maximize the value of the Corporate Debtor, he shall endeavour to sell under such clauses. Accordingly, while taking action under Chapter 6 of Liquidation Process Regulations, dealing with realizations of assets of the Corporate Debtor, selling the Corporate Debtor as a going c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Scheme Proponent, in relation to the Corporate Debtor should have been considered first, before deciding the aspect of selling the Corporate Debtor as a going concern. The said interpretation of Section 230 of the Companies Act as being attempted by the Appellant is not acceptable by this Tribunal. 28. In relation to the prayers made in IA(IBC)/420(CHE)/2024, the learned Adjudicating Authority, has observed that the aspect of confirmation of sale of the Corporate Debtor, as a going concern to the Successful Bidder as required under Regulation 32(e) to be read with Regulation 32A, meets the objective of the Code, that the Successful Bidder i.e. Mr. Virendra Jain Mr. Ankit Jain, were determined as to be the Highest Bidder and the amount of Bid Price, submitted by them being Rs.487 Crores is much higher than the Reserve Price of Rs.457 Crores, which was fixed by the Liquidator and that, there was no apparent or legal error committed as such, calling for any interference. 29. Thus, ultimately based upon the aforesaid finding and analysis, which has been made by the learned Adjudicating Authority, the two applications as preferred therein by the appellant, and which are the subje ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
