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2021 (8) TMI 623 - Tri - Insolvency and BankruptcySeeking to issue direction regarding Consideration of Expression of Interest/Resolution Plan by the RP and COC - seeking directions to the RP to call for meeting of Committee of Creditors - seeking exclude the litigation period in view of proviso 12(3) of I & B Code - HELD THAT:- In this matter, the CIRP was initiated on 25.07.2018 and the final list of resolution applicants was notified on 16.11.2018 and it is further seen that the last date for submission of the Resolution Plan was 06.12.2018. Under Section 33 of the IBC, an Adjudicating Authority is vested with the power to pass the liquidation order. Whereas under Section 34 of the IBC, 2016, the Adjudicating Authority is empowered to appoint the Liquidator - the application filed by the Resolution Professional for liquidation under Section 33 of the IBC, 2016 has already been allowed. Vide that Order, this Adjudicating Authority held that "The assets of the Corporate Debtor be put for liquidation as no resolution plan has been received and 270 days are also over." The matter is pending only for appointment of the RP as a liquidator as no decision has been taken by the CoC in this respect. Whenever the Adjudicating Authority pass an order for liquidation of the corporate debtor under section 33, the Resolution Professional appointed for the corporate insolvency resolution process under Chapter II shall, subject to submission of a written consent by the Resolution Professional to the Adjudicatory Authority in specified form, act as the liquidator for the purposes of liquidation unless replaced by the Adjudicating Authority under sub-section (4) Section 34 of IBC 2016. Thus, so far as the liquidation order under Section 33(1) of the IBC, 2016 is concerned, the first part of the order dated 14.06.2019 shows that the order of liquidation was passed on two grounds i.e. no resolution plan was received and the period of CIRP was already over. Hence, in view of Section 34(1) of the IBC, 2016, unless the Resolution Professional is replaced under Sub-section 4 of Section 34 of IBC, 2016, he shall continue to act as Liquidator - It is also the admitted position of law that there is no power for review of order under the IBC and once the liquidation order is passed by this Adjudicating Authority on 14.06.2019, there is no scope to recall. The subsequent order dated 04.07.2019 cannot be read as an order of recall of the order of liquidation, rather it can be treated as an order which deferred the matter that was for consideration i.e., confirmation of the liquidator under Section 34(4) of the IBC, 2016 only. There are no force in the contention of the Applicant and no reason to give any direction to the applicant or the COC in respect of the Expression of Interest/Resolution Plan of Resolution Applicant M/s. Hindustan Aqua Private Limited received by the Resolution Professional - application dismissed.
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