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2019 (3) TMI 1524 - Tri - Insolvency and BankruptcyCorporate insolvency process - proceedings to be transferred from BIFR authorities to NCLT authorities - Whether the present Section 10 application is to be treated as continuation of BIFR proceedings on repeal of SICA ? - Whether the DRS Scheme is to be treated as a resolution plan for the revival of this corporate applicant? - Whether this petition deserves admission?whether ‘Corporate Person’ U/s 3(7), having outstanding debts, therefore, falls within the definition of ‘Corporate Debtor’ U/s 3(8) & there was a ‘Default’ of non-payment of outstanding debt as per the terms of Sec. 3(12)? HELD THAT:- Due to the repeal of SICA Act the proceedings pending stood abated. On abatement, the proceedings pending are required to be transferred to NCLT within 180 days. So, the Petitioner had no option but to take action by filing a petition U/s 10 of the Insolvency Code. As a consequence, filed this petition on 12.12.2018 with all necessary information such as the position of financial debts and the step taken under SARFAESI provisions. Simultaneously, this petitioner has to inform the Adjudicating Authority the steps taken before BIFR Authority so that a due cognizance of resolution plans, earlier submitted, can be/ must be taken into account. It is correct on the part of the Corporate Debtor/Applicant to move separately an application U/s 30 of IBC which is meant for “submission of resolution plan”. This Applicant has made an attempt by filing this Application to place on record the ‘Resolution Plan’ already considered and taken into account by the BIFR Authorities. There should not be any ambiguity that once the proceedings are to be transferred from BIFR authorities to NCLT authorities, it is but natural that those resolution plans must also be treated as transferred and thereupon ought to be treated as “resolution plan” falling within the ambits of S. 30 of the Code. As far as the petition U/s 10 is concerned, it is almost mechanical for the Adjudicating Authority to admit the same because in all such cases there is hardly any objector. Same is the position at present. On admission, Corporate Insolvency Resolution Process shall commence henceforth, and IRP shall be appointed. He shall constitute COC and convene the meeting. For the purpose of collection of necessary details for preparation of “Information Memorandum” as prescribed U/s 29 of the Code, it is hereby directed that the Corporate Debtor /petitioner shall immediately furnish the documents and financial data to the appointed IRP so that the requisite information memorandum can be prepared and to be placed before the COC. This Bench is of the view that there is no requirement of publication to invite EoI. It can be said to be a path-breaking view, but according to my understanding, it is the only recourse available because in this case that exercise had already been completed under SIC Act. There is no requirement for inviting Resolution Plans in this case - the situation in this case is that a Resolution Plan is already in existence. Not only that the said resolution plan is in existence, but it was duly acted upon. The said resolution plan was already considered by the bankers during SARFAESI proceedings. Those very bankers are now going to constitute CoC under Insolvency Code. This very ‘Consortium’ has already acknowledged and accepted the resolution plan, hence, the right recourse available is to consider that Resolution Plan as if a resolution plan U/s 30 of the Code. Whether this petition be admitted or not stands answered in view of the fact that the petitioner being a ‘Corporate Person’ U/s 3(7), having outstanding debts, therefore, falls within the definition of ‘Corporate Debtor’ U/s 3(8) & there was a ‘Default’ of non-payment of outstanding debt as per the terms of Sec. 3(12). Therefore, this petition is fit for admission U/s 10 of the Code.The Petition is hereby “Admitted”. The commencement of the Corporate Insolvency Resolution Process shall be effective from the date of order.
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