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2019 (5) TMI 1046

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..... n the provisions under Section 33(1) of IBC, 2016, as extracted above, the only recourse available is liquidating the CD in view of the CoC in their meeting having unanimously rejected the only Resolution Plan available before it thereby effectively approved for the liquidation of the Corporate Debtor and there being no Resolution Plan being placed before it, this Tribunal orders for liquidation of the Corporate Debtor and in the circumstances the CD stands liquidated and the incidence of liquidation to follow, on and from the date of this order in terms of provisions of IBC, 2016 and more particularly as given in Chapter-III of IBC, 2016 and also in terms of Insolvency and Bankruptcy (Liquidation Process) Regulations, 2017 - Further in terms of the said Regulations, the Liquidator shall file his report to this Tribunal as mandated therein. The present RP, namely Mr. Vijender Sharma shall act as the liquidator based upon his consent expressed, as the liquidator of the CD. He shall issue the public announcement that the CD is in liquidation. In relation to officers/employees and workmen of the CD, taking into consideration Section 33(7) of IBC, 2016, this order shall be deemed to be .....

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..... he IRP of the CD and that during his tenure as IRP, the said Mr. Ashwani Kumar had filed three status report dated 12.05.2017, 01.06.2017 and 20.06.2017. (2) That in the first COC meeting held on 07.06.2017, the applicant RP was appointed by COC, instead of the IRP appointed by this Tribunal, namely, Mr. Ashwani Kumar and the change of RP to the present one was also confirmed by this Tribunal on 30.06.2017 based on an application filed by ICICI Bank Ltd. under Section 22(3)(b) of IBC, 2016. (3) Consequent to the affirmation by this Tribunal of the appointment of the applicant and confirmation by Insolvency and Bankruptcy Board of India, (IBBI), the applicant it is stated accepted the office of RP in relation to the CD on 26.07.2017.The applicant further states that the following status reports have been filed, the details of which are as under:- Sl. No. Particulars Date Diary No. Name of IRP/RP 1 Status Report No.4 14.08.17 668 Sh.Vijender Sharma 2 Status Report No.5 27.09.17 2099 Sh.Vijender Sharma 3 Status Report No.6 10.11.17 2647 Sh.Vijender Sharma 4 Final Report on the expiry of 270 days 29.01.18 448 Sh.Vijender Sharma 5 Final report in continuation of report dated 29.01.2018 .....

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..... in relation to CD (iii) That in the mean while, consequent to the qualifications being put by the COC in terms of net worth in its 4th meeting held on 23.01.2018 subsequent to order of extension of CIRP on 16.01.2018 and pursuant to the advertisement inviting Expression of Interest (EOI), on 06.02.2018 it is averred the Resolution Applicants submitted the resolution plan, even though it had earlier circulated to the RP as well as to COC on 28.12.2017 itself. (iv) However, on 13.02.2018 the RP it is stated had erroneously communicated that the Resolution Applicants are barred under Section 29A of IBC, 2016 and that the said view of the RP is in derogation of law and that the conclusion of the RP that the Resolution Applicants are barred under Section 29A and also in relation to net worth of the Resolution Applicants jointly is without any merits and is liable to be set aside. (v) It is also averred to the effect in relation to the rejection that the RP suo motu does not have the mandate to decide these issues without recourse in effect to the COC and the decision of the RP not even to place the Resolution Plans before the COC is in complete derogation of the provisions of IBC, 2016 .....

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..... ny merits and is liable to be overruled. (iii) That this additional application has been filed taking into consideration the RP as well as COC have not given the grounds for rejection and that the rejection per se is not in consonance with the established precedents and also in view of the position that new law in the form of Ordinance having coming into force on and from 06.06.2018 favoring the Resolution Applicants and as envisaged under Section 30(4) of IBC, 2016 and Section 240A inserted on 06.06.2018. (iv) That taking into consideration the procedure and exemptions envisaged under Section 30(4) and Section 240A as it stands on the date of filing of the above application, subsequent to the order being reserved, by way of Ordinance effective from 06.06.2018 the procedure contemplated therein should be allowed its due course by allowing the additional application filed after the orders were reserved by this Tribunal on 04.05.2018. (V) (1) The paragraphs given above in a nutshell sums up the essential facts as averred in the applications for its disposal. On the one hand it is seen that the Financial Creditors of the Corporate Debtor to whom a sum of ₹ 46,35,89,594/- is owed .....

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..... , 2016. Since both Section 29A as well as Section 25(2)(h) has been invoked by the COC to bar the resolution applicants the same has been specifically mentioned. A similar mention of sub section 4 of Section 30 as amended by virtue of Insolvency and Bankruptcy Code (Amendment) Act, 2018 w.r.e.f. 23.11.2017 and the inclusion of Section 240A by virtue of Insolvency and Bankruptcy Code (Second Amendment) Act, 2018 w.r.e.f. 06.06.2018 is also required to be made in all fairness and which provisions are sought to be relied on by the resolution applicants in order to justify the filing of their applications in addition to challenge the decision of COC in rejecting the resolution application based on Section 29A of IBC, 2016 as well as Section 25(2)(h) of the said Code. (VI) Before going into analysis as to whether the grounds for rejection of the resolution plan by the COC is legally sustainable or not, it will be required to look into the sequence of events which had occurred and in some detail, subsequent to the date of initiation of CIRP and for ready reference as extracted in the compilation of list of dates as filed by ICICI Bank being a financial creditor with a view to understand .....

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..... s no vested right that his resolution plan be considered, it is clear that no challenge can be preferred to the Adjudicating Authority at this stage. A writ petition under Article 226 filed before a High Court would also be turned down on the ground that no right, much less a fundamental right, is affected at this stage. This is also made clear by the first proviso to Section 30(4), whereby a Resolution Professional may only invite fresh resolution plans if no other resolution plan has passed muster. 77. However, it must not be forgotten that a Resolution Professional is only to examine and confirm that each resolution plan conforms to what is provided by Section 30(2). Under Section 25(2)(i), the Resolution Professional shall undertake to present all resolution plans at the meetings of the Committee of Creditors. This is followed by Section 30(3), which states that the Resolution Professional shall present to the Committee of Creditors, for its approval, such resolution plans which confirm the conditions referred to in sub-section (2). This provision has to be read in conjunction with Section 25(2)(i), and with the second proviso to Section 30(4), which provides that where a resol .....

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..... dering the objections received under sub-regulation (11), the resolution professional shall issue the final list of prospective resolution applicants within ten days of the last date for receipt of objections, to the committee. 78. Thus, the importance of the Resolution Professional is to ensure that a resolution plan is complete in all respects, and to conduct a due diligence in order to report to the Committee of Creditors whether or not: it is in order. Even though it is not necessary for the Resolution Professional to give reasons while submitting a resolution plan to the Committee of Creditors, it would be in the fitness of things if he appends the due diligence report carried out by him with respect to each of the resolution plans under consideration, and to state briefly as to why it does or does not conform to the law. 79. Take the next stage under Section 30. A Resolution Professional has presented a resolution plan to the Committee of Creditors for its approval, but the Committee of Creditors does not approve such plan after considering its feasibility and viability, as the requisite vote of not less than 66% of the voting share of the financial creditors is not obtained. .....

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..... . Section 60(5), when it speaks of the NCLT having jurisdiction to entertain or dispose of any application or proceeding by or against the corporate debtor or corporate person, does not invest the NCLT with the jurisdiction to interfere at an applicant's behest at a stage before the quasi-judicial determination made by the Adjudicating Authority. The non obstante clause in Section 60(5) is designed for a different purpose: to ensure that the NCLT alone has jurisdiction when it comes to applications and proceedings by or against a corporate debtor covered by the Code, making it clear that no other forum has jurisdiction to entertain or dispose of such applications or proceedings. (VII) From the above paragraphs as culled out from the decision of the Hon'ble Supreme Court in Arcelor Mittal's case (supra) certain vital aspects emerge in relation to consideration of Resolution Plans and as to the stage at which the Resolution Applicants can mount a challenge before the Adjudicating Authority, be it the decision of Resolution Professional or that of the COC in rejecting or accepting a resolution plan: (i) Taking into consideration the provisions of Section 30 of IBC, 2016 an .....

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..... provision in that a resolution applicant may submit a resolution plan to the Resolution Professional, who is then to examine the said plan to see that it conforms to the requirements of Section 30(2). Once this plan conforms to such requirements, the plan is then to be presented to the Committee of Creditors for its approval under Section 30(3). This can then be approved by the Committee of Creditors by a vote of not less than 66% under sub-section (4). What is important to note is that the Committee of Creditors shall not approve a resolution plan where the resolution applicant is ineligible under Section 29A, and may require the Resolution Professional to invite a fresh resolution plan where no other resolution plan is available. Once approved by the Committee of Creditors, the resolution plan is to be submitted to the Adjudicating Authority under Section 31 of the Code. It is at this stage that a judicial mind is applied by the Adjudicating Authority to the resolution plan so submitted, who then, after being satisfied that the plan meets (or does not meet) the requirements mentioned in Section 30, may either approve or reject such plan. XXXX XXXX XXXX Thus armed with the wisdom .....

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..... cords that two EoI were received, one from Promoters and another from one Mr. Satish. The Promoters were found to be ineligible as they have failed to provide suitable documents to prove their net worth of ₹ 10.00 crores, as fixed by the CoC. No concrete proposal was submitted by Mr. Satish and thus CoC again recommended for liquidation of Corporate Debtor. 28.02.2018 Company Appeal(AT) (Insolvency) No.41 of 2018 filed by promoters to set aside order dated 25.1.2018 allowed by Hon'ble NCLAT and directed that the 90 days extended period be calculated from the date of order i.e. w.e.f. 16/1/2018. 13.03.2018 In compliance of CoC meeting dated 19.2.2018, the Resolution Professional filed a status report for liquidation of Corporate Debtor vide diary No. 1377 dated 13.03.2018 which was taken on record by the Ld. Tribunal below. 23.03.2018 The application being CA No. l90/PB/2018 filed by Promoter Director of the Respondent Company - Mr. Ram Niwas, claiming to have come forward with another Resolution Plan was taken up. 09.04.2018 The Ld. Tribunal directed the Resolution Professional to place the Resolution Plan of Mr. Ram Niwas, Promoter Director of the Respondent Company befo .....

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..... lution Plans of the resolution applicants it must be noted having been rejected on 13.04.2018 and in the circumstances the only course available is to press the liquidation mode in relation to the Corporate Debtor in view of the provisions of Section 33 of IBC, 2016. (X) However, learned counsel for the resolution applicants vehemently opposes the liquidation of the Corporate Debtor on the grounds as given in paragraph II (2) supra under the caption Application No. 626 (PB)/2018 filed vide diary No. 4141 dated 26.06.2018 and for sake of brevity the same is not repeated. It is evident that the resolution applicants are none other than the members comprising of the board of directors of the Corporate Debtor (KMP) whose powers stand suspended and who seeks to take advantage of the amendments brought into effect in relation to inter alia the provisions of IBC, 2016 as well as to Section 29A of IBC, 2016 dealing with persons not eligible to be a resolution applicant and contends that the said provisions, namely 29A(c) and 29A(h)cannot be made applicable in relation to the resolution applicants being an MSME entity as one of the grounds for rejection of the resolution plan by the COC, th .....

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..... ellate authority, either by way of allowing or dismissing an appeal before it, the period of time taken in litigation ought to be excluded. 2. From the above observations of the Hon'ble Supreme Court it is evident that more than a fair chance is required to be given for the resolution of insolvency by this Tribunal prior to ordering liquidation, however based on a reasonable and balanced construction of the statute. The reasonable and balanced construction can be safely interpreted to mean the interest of the various stake holders concerned are to be balanced and cannot be divorced from their interest and being tilted only towards one of the stakeholders, to the detriment of other stakeholders in this case towards the promoters of the Corporate Debtor ignoring the concerns and interest of the creditors which will only militate against the avowed object of the Code, namely IBC, 2016 and as also reflected in the Banking Law Reforms Committee of November 2015 as extracted by the Hon'ble Supreme Court at paragraph 16 of the judgment rendered in Innoventive Industries Ltd. v. ICICI Bank [2017] 84 143 SCL 625 which is to the following effect: xxxxxxx The limited liability company .....

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..... ontrol of the company by virtue of provisions of IBC, 2016, has vested with the COC and under the circumstances equity holders cannot have a say according to their own dictates and conditions by way of trying to impose a Resolution Plan as submitted by them should be necessarily considered. 4. The sermonizing on the part of the parties, particularly ICICI Bank having a voting strength of 60% as well as the RP and the Board of Directors whose powers stand suspended and being the Resolution Applicants in relation to certain delays which has occasioned due to certain infrastructural deficiencies which are being addressed to by the Central Government, we find it strange and deliberately thrown at this Tribunal and of which strong exception is taken.The apprehension expressed concerning the unavoidable delay made by the Counsel for ICICI Bank would have been relevant if it were the first person to have approached this Tribunal under the provisions of IBC, 2016 seeking for the CIRP of the Corporate Debtor due to defaults. However, that seems to not be the case here despite defaults on the part of the Corporate Debtor. 5. Unlike the situation prevalent and detailed in the Hon'ble Supr .....

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..... on u/s. 33 of the IBC, 2016. Approved by 0.00%, Opposed by 91.24%, Abstained from voting 8.76%. 7. The fate of the resolution plan as given above shows that by overwhelming majority of 91.24% the resolution plan as submitted by KMP of the CD has been opposed and thereby rejected. However, it is also evident from the said meeting of CoC held on 26.10.2017 and the voting completed thereafter that the CoC has not recommended for liquidation of the CD despite the RP bringing to the notice of the CoC that the rejection of resolution plan will entail liquidation automatically but on the other hand the CoC had decided to send for extension of the CIRP process by further 90 days and in the meanwhile directed the RP to look for other resolution plans in view of the enquiry being made by the OC which had initiated this company petition in the first place leading to its admission and the CIRP process in relation to the CD being unfolded. 8. In this connection the OC, namely, Anant Overseas Private Limited, it is seen from the report of the RP that certain avoidable transactions have taken place as between OC and CD and contrary to the statements made in the applications supported by affidavit .....

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..... eria for Potential Resolution Applicant (RA), Possible parties/bidders A. For Private/Public Ltd. Company/LLP/Body Corporate, whether incorporated in India or outside/any other applicant: B. For Financial Institutions/Investment Companies/Fund Houses /PE Investors/NBFCs/ARC or any other applicant: C. Individuals/Partnership Firms/Group of Investors. Basis of evaluation of the bidders: Category A Financial credibility 1. Financial statements of the past 2-3 years to determine the capability of the bidder to run the corporate debtor. 2. Minimum net-worth of ₹ 10 crores, turnover of ₹ 50 crores and cash/cash equivalent of ₹ 5 crores available required (for the immediately preceding completed financial year), to eliminate non-serious players. Net Worth shall be computed as aggregate value of paid-up share capital and all reserves created out of the profits and securities premium account, after deducting the aggregate value of the accumulated losses, deferred expenditure and miscellaneous expenditure not written off, and does not include reserves created out of revalue of assets, write back of depreciation and amalgamation. Experience level 1. The player should have at .....

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..... Section 29A of IBC, 2016 read with explanation provided there under, the other joint applicants also become ineligible. It is also brought to the notice of this Tribunal by the RP that Punjab National Bank had invoked guarantee given by Mr. Naresh Basia in favor of CD and in the circumstances he has become ineligible. 13. Even though the RP has reported that another EoI was received from one Mr. Satish who had also deposited a sum of ₹ 25,000/- but however no further documents have been received from him in order to evaluate his eligibility. The report also brings to the notice of this Tribunal that the CoC had taken a call about the possibility of liquidation process and it was also opined by CoC that the RP appointed for the CIRP should be the liquidator for the purpose of liquidation unless the adjudicating authority, namely, this Tribunal comes to conclusion otherwise. 14. From the minutes of the 5th CoC meeting held on 19.2.2018, it is seen that in view of the rejection of the resolution plan submitted by promoters of the CD in the capacity of resolution applicants having been rejected by the CoC and that in relation to one Mr. Satish has not lodged or filed for due cons .....

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..... ect: 1. Calculation of Net-worth, which was fixed at ₹ 10 crores by the CoC There was a difference in the method of calculation of total net worth of the resolution applicants as required under the provisions mentioned in the EoI published by the RP for inviting potential bidders to participate in the revival proceedings of the CD. As per the calculation done by the RP, the applicants were not meeting the criteria of having minimum net worth of ₹ 10 crores. But the resolution applicants had submitted documents supporting their calculation according to which they were meeting the criteria. The major reason for difference in calculation was consideration and inclusion of trade debtors of the CD amounting to ₹ 46 crores standing in the audited books of account of FY 2016-17, of which nothing had been realized during the CIRP period, since 03.05.2017. As for the realisibility possibility of these debtors, the KMP/now resolution applicants themselves had earlier been skeptical. The CoC put numerous queries to the resolution applicants and sought clarification on their calculation. The resolution applicant requested the CoC to waive-off the criteria fixed by the CoC. Af .....

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..... ditors), provision of payment of statutory liabilities during the implementation of the resolution plan, business plan proposed under the resolution plan and capital induction by the resolution applicants. When the resolution plan was put to vote as well as upon voting, it is seen that the resolution plan was opposed by 83.45% of the CoC members where as it was approved by 0.73% and 15.82% of the voters abstained. The voting pattern has been mentioned at page No. 174 of the report filed by RP vide Dy. No.2203 wherein it is seen both the resolution plans having the same voting percentage as given above has been voted upon and rejected. 19. In the earlier paragraph of this order this Tribunal has already dealt in detail in relation to the latest position of law, as discussed by Hon'ble Supreme Court in Arcelormittal India (P.) Ltd. (supra) case subsequent to amendments of IBC, 2016. It is also required to be noted that at the time of submission of the resolution plan and thereafter its rejection by CoC amendment to IBC, 2016 by way of Insolvency and Bankruptcy Code (Second Amendment) Act, 2018 had not come into force as it came into effect on and from 6.6.2016 by which certain ex .....

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..... at every effort should be made for resolving the insolvency of the CD and maximization of the value of assets rather than its liquidation. However, such an exercise cannot be skewed to only the interests of promoters thereby completely giving a go by to the statements and object for enactment of the Code in the first place for the purpose of resolving huge debts as are accumulated to the Banks/FIs. 22. In relation to the commercial decisions taken by the CoC in relation to the affairs of the CD, a similarity can be drawn by this Tribunal that while considering the scheme of amalgamation for that matter for restructuring of business proposed by different stakeholders being the shareholders of the company and as well as its creditors, whether secured or unsecured, Hon'ble Supreme Court has consistently held that commercial decisiors are best taken by the shareholders or by the creditors in relation to the restructuring exercise and that the same should not be interfered with by Company Court, presently this Tribunal supplanting its wisdom as compared to that of the stakeholders unless it is brought to the notice of this Tribunal that there has been a violation of law or an exerci .....

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..... 0 PNB 9.00 1.35 1.80 1.35 4.50 50.00 4.50 50.00 0.00 0.00 SIDBI 1.24 0.19 0.37 0.00 0.56 45.00 0.00 0.00 0.68 55.00 Standard Chartered Bank 1.98 0.30 1.09 0.00 1.38 70.00 0.00 0.00 0.59 30.00 Kotak Mahindra Prime 0.02 0.00 0.01 0.00 0.02 70.00 0.00 0.00 0.01 30.00 BMW India Fin. Services 0.10 0.02 0.06 0.00 0.07 70.00 0.00 0.00 0.03 30.00 HDFC Bank 0.15 0.02 0.08 0.00 0.10 70.00 0.00 0.00 0.04 30.00 ICICI Car Loan 0.04 0.01 0.02 0.00 0.03 70.00 0.00 0.00 0.01 30.00 Rainbow Digital Services 0.59 0.09 0.15 0.00 0.23 40.00 0.00 0.00 0.35 60.00 Jainsons Finlease Ltd. 1.47 0.22 0.37 0.00 0.59 40.00 0.00 0.00 0.88 60.00 Total 47.50 7.12 10.53 6.29 23.94 50.40 20.95 44.11 2.61 5.49 Unsecured Loans Total Amt. 6.74 0.00 1.01 0.00 1.01 15.00 0.00 0.00 5.73 85.00 Grand Total 54.24 7.12 11.54 6.29 24.95 46.00 20.95 38.63 8.34 15.37 Under Resolution Plan which was rejected by CoC on 13.04.2018 The Revival Plan Restructuring without extra funding by Lenders Particulars Existing O/S Amt. TL1 TL2 WC Proposed Outstanding % Value of Shares % Sacrifice Amt % Secured Loans ICICI Bank Ltd. 33.71 6.40 6.74 5.39 18.54 55.00 15.17 45.00 0.00 0.00 PNB 9.19 0.51 2.99 1.56 5.05 55.00 4.13 45.00 0.00 0.00 SID .....

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..... above aspects and since the resolution plan as submitted by the resolution applicants stand rejected by the CoC and we do not find any legal infirmity in rejecting the resolution plan by the CoC as it is seen that the CoC has repeatedly considered the case of the promoters of the CD, this Tribunal is of the view that liquidation process in relation to the CD is required to be initiated as contemplated under Section 33 of IBC, 2016 with all the attendant consequences. 25. In view of no Resolution Plan having been approved by the CoC within the period of CIRP of 180 days as well as the extended period of 90 days, recourse is to only press the liquidation mode as provided under the provisions of Section 33 of IBC, 2016 of which the relevant sub-section 1 of Section 33 is reproduced hereunder : 33. (1) Where the Adjudicating Authority, - (a) before the expiry of the insolvency resolution process period or the maximum period permitted for completion of the corporate insolvency resolution process under section 12 or the fast track corporate insolvency resolution process under section 56, as the case may be, does not receive a resolution plan under sub-section (6) of section 30; or (b) re .....

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..... public announcement that the CD is in liquidation. In relation to officers/employees and workmen of the CD, taking into consideration Section 33(7) of IBC, 2016, this order shall be deemed to be a notice of discharge. The Liquidator appointed being the Resolution Professional during the CIRP period shall follow up and continue to investigate the financial affairs of the CD particularly, in relation to preferential transactions/under valued transactions and such other like transactions including fraudulent preferences. The Liquidator shall also submit report by way of preliminary report to this Tribunal within 75 days from the liquidation commencement date in accordance with the regulations. Further, a copy of this order shall be also communicated to the Registrar of Companies, NCT of Delhi and Haryana. The Liquidator shall intimate the Registrar of Companies forthwith in relation to the Liquidation Process of the Corporate Debtor being set in motion. In terms of Section 178 of the Income-tax Act, 1961, the Liquidator shall give necessary intimation to the Income Tax Department. In relation to other fiscal and regulatory authorities which governs the Corporate Debtor, the Liquidator .....

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