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TMI Blog2024 (11) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... ication came up for consideration before the Learned Adjudicating Authority and the Learned Adjudicating Authority after considering the text of the relief sought in IA No.140/2022, had dismissed by observing that it was on the same grounds / prayers the Appellant had already approached before the NCLAT by filing IA No.436/2021 in CA (AT) (CH) (Ins) No.314/2020 which has been rejected, that the relief as sought for in IA No.140/2022 has already been denied by the NCLAT while deciding IA No.436/2021, that, the Appellant has suppressed the material fact regarding the orders passed on IA No.436/2021 in CA (AT) (CH) (Ins) No.314/2020, and therefore, the relief as it was sought for in IA No.140/2022 would not be tenable owing to the bar created by the decision taken on IA No.436/2021 preferred in CA (AT) (CH) (Ins) No.314/2020. Apart from the aforesaid reason, the Learned Adjudicating Authority has concluded that the relief sought for by the applicant by invoking the provisions contained under section 60(5) of the Insolvency and Bankruptcy Code, 2016 to be read with Rule 11 of the NCLT Rules cannot be granted to the Appellant for the following reasons. (1) The Resolution Plan which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny Law Tribunal, Bengaluru Bench in IA No.140/2022 in CP(IB) No.14/BB/2017, wherein the prayer of the Appellant seeking for issue of an appropriate direction to the liquidator to put on hold the auction of the immovable asset of the Corporate Debtor, to consider his proposal to sell the Corporate Debtor as a going concern and accordingly to provide him a sale notice for the same in the interest of maximisation of the value of Corporate Debtor was negatived and IA No.140/2022 was dismissed. Brief facts as involved in the Comp App (AT) (CH) (Ins) No.314/2020 are given below : - The Appellant claims that he is engaged in the business of tanning and dressing of leather and manufacturing of luggage handbags, saddler and harness and he enjoys a vast reputation and credibility in the said field of business. The Financial Creditor namely M/s. Edelweiss Asset Reconstruction Company, initiated Corporate Insolvency Resolution Process (CIRP) Proceeding on 01.05.2018 and one Mr. Vijaykumar Iyer was appointed as the Interim Resolution Professional (IRP). Thereafter an Application was filed to appoint Respondent No.1 as a Resolution Professional (RP), to conduct the CIRP and Learned NCLT by an Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uesting for the approval of the Resolution Plan, which had been submitted by the Appellant. He further contends that he has revised his Resolution Plan to suitably address the objections raised on the plan submitted by him and submitted 5 Addendums to make it more viable, that he sought to further revise the Resolution Plan by filing IA No.449/2019, that his intention was to take over the entire assets of the Corporate Debtor, as a going concern, and that on the revised Resolution Plan, the objections made by the Resolution Professional vide its email communication dated 10.01.2019 was merely hyper-technical in nature. He has submitted that upon receipt of the email dated 18.01.2019, he had conducted a series of discussions with Respondent No.1, for the purpose of clarifying the improvements made to the Resolution Plan as submitted on 18.01.2019 and the breakup of the settlement resolution amount, and after undertaking the aforesaid process, he had submitted the Consolidated Resolution Plan vide his letter dated 23.01.2019. He has contended that the Respondent No.1, vide its email dated 25.01.2019 had stated that the Revised Resolution Plan submitted by the Appellant meets the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f putting the challenge to the order passed in IA No.47/2019, which was filed by the Resolution Professional under section 33(1), to be read with section 60(5) of the Insolvency and Bankruptcy Code, 2016. Seeking for setting aside of the said order and for consideration of his resolution plan instead. The Order passed in IA No.47/2019 preferred by the Resolution Professional by Learned NCLT is extracted hereunder:- In the result, IA No.47 of 2019 in CP(IB) No.14/BB/2017 is hereby disposed of with the following directions: (1) We hereby ordered that M/s. Falcon Tyres Limited (Corporate Debtor herein), to be liquidated in the manner as laid down in Chapter III (Liquidation Process) of Part II of the Code; (2) We hereby appointed Shri Shivadutt Bannanje, Insolvency Professional, bearing registration No.IBBI/IPA-002/IP-N00266/2017-18/10779 as Liquidator for the Corporate Debtor; (3) We hereby directed the Liquidator to issue immediate public announcement by stating that the Corporate Debtor is in liquidation; (4) The Registry is directed to communicate the order to the Registrar of Companies, Karnataka for information and necessary action. (5) The liquidator is directed to strictly adh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat its Resolution Plan is most viable, alternative to revive operations of the Company etc., are not all tenable and baseless and thus they are liable to be rejected. The COC has dispassionately considered the issue vis a vis the object of code, interest of all stake holders, and thus found that the Resolution Plan is question is not at all tenable and the same was view was almost unanimously approved by it. Therefore, there is no arbitrariness and any violations of provisions of Code and the rules made thereunder, in rejecting the case of Applicant. 7. The Adjudicating Authority, by separate order dated 30.12.2019 passed in IA No.47/2019, has ordered the Company (CD) to be liquidated in accordance with extant provision of Code and the rules made thereunder, by detailed order. Therefore, the present Application also became infructuous. 8. For the above reasons and circumstance of the case and the settled law on the issue, we are of considered opinion that the instant Application lacks merits, and Applications are liable to be dismissed . The implication of the Order of 30.12.2019 relating to IA No.48/2019 and IA No.449/2019, would be that as a matter of fact, no cause of action, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor as a going concern and accordingly provide the Applicant a sale notice for the same in the interest of maximization of the value of the assets; c. Pending the hearing and final disposal of the present application, an order restraining the Liquidator from alienating and/or selling the said immovable asset; d. For ad interim reliefs in terms of prayer clause (a) to (c); e. Such further and/or other order or orders be passed and/or direction or directions be given, as to this Hon ble Court may deem fit and proper . This Application came up for consideration before the Learned Adjudicating Authority and the Learned Adjudicating Authority after considering the text of the relief sought in IA No.140/2022, had dismissed by observing that it was on the same grounds / prayers the Appellant had already approached before the NCLAT by filing IA No.436/2021 in CA (AT) (CH) (Ins) No.314/2020 which has been rejected, that the relief as sought for in IA No.140/2022 has already been denied by the NCLAT while deciding IA No.436/2021, that, the Appellant has suppressed the material fact regarding the orders passed on IA No.436/2021 in CA (AT) (CH) (Ins) No.314/2020, and therefore, the relief as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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