TMI Blog2019 (7) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... eema, Member (Judicial) And Mr Kanthi Narahari, Member (Technical) For The Appellant : Mr. Pai Amit, Advocate For The Respondents : None ORDER M/s. C. Mahendra International Ltd., Shareholder of Ciemme Jewels Limited has preferred this Appeal against order dated 25th March, 2019 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, whereby order of liquidation under Section 33 of the Insolvency Bankruptcy Code, 2016 (I B Code) has been passed. 2. Learned Counsel appearing on behalf of the Appellant submits that the Resolution Applicant had submitted a plan for ₹ 6.14 crores, which was not accepted, but the Appellant has offered ₹ 6.5 crores. However, we are not inclined to grant relief the application being ineligible in terms of Section 29A. It is also accepted that more than 270 days have passed and, therefore, order of liquidation cannot be interfered with. 3. However, we are of the view that in view of the order of liquidation, the Liquidator is now required to act in terms of the decision of this Appellate Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process. The timelines within which the resolution process is to take place again protects the corporate debtor s assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends. In Arcelormittal India Pvt. Ltd. vs. Satish Kumar Gupta Ors. at paragraph 83, footnote 3 is mentioned. The Hon ble Supreme Court noticed that : 3. Regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, states that the liquidator may also sell the corporate debtor as a going concern. 6. In Meghal Homes Pvt. Ltd. vs. Shree Niwas Girni K.K. Samiti Ors. (2007) 7 SCC 753 the Hon ble Supreme Court observed and held as follows: 33 . The argument that Section 391 would not apply to a company which has already been ordered to be wound up, cannot be accepted in view of the language of Section 391(1) of the Act, which speaks of a company which is being wound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of those methods. ( 2) The company or any other person, by whom an application is made under subsection (1), shall disclose to the by affidavit- ( a) all material facts relating to the company, such as the latest financial position of the company, the latest auditor s report on the accounts of the company and the pendency of any investigation or proceedings against the company; ( b) reduction of share capital of the company, if any, included in the compromise or arrangement; ( c) any scheme of corporate debt restructuring consented to by not less than seventy-five per cent. of the secured creditors in value, including- ( i) a creditor s responsibility statement in the prescribed form; ( ii) safeguards for the protection of other secured and unsecured creditors; ( iii) report by the auditor that the fund requirements of the company after the corporate debt restructuring as approved shall conform to the liquidity test based upon the estimates provided to them by the Board; ( iv) where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l outstanding debt as per the latest audited financial statement. ( 5) A notice under sub-section (3) along with all the documents in such form as may be prescribed shall also be sent to the Central Government, the income-tax authorities, the Reserve Bank of India, the Securities and Exchange Board, the Registrar, the respective stock exchanges, the Official Liquidator, the Competition Commission of India established under sub-section (1)of section 7 of the Competition Act, 2002, if necessary, and such other sectoral regulators or authorities which are likely to be affected by the compromise or arrangement and shall require that representations, if any, to be made by them shall be made within a period of thirty days from the date of receipt of such notice, failing which, it shall be presumed that they have no representations to make on the proposals. ( 6) Where, at a meeting held in pursuance of sub-section (1), majority of persons representing three-fourths in value of the creditors, or class of creditors or members or class of members, as the case may be, voting in person or by proxy or by postal ballot, agree to any compromise or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of affidavit, to the scheme of compromise or arrangement. ( 10) No compromise or arrangement in respect of any buy-back of securities under this section shall be sanctioned by the Tribunal unless such buy-back is in accordance with the provisions of section 68. ( 11) Any compromise or arrangement may include takeover offer made in such manner as may be prescribed: Provided that in case of listed companies, takeover offer shall be as per the regulations framed by the Securities and Exchange Board. ( 12) An aggrieved party may make an application to the Tribunal in the event of any grievances with respect to the takeover offer of companies other than listed companies in such manner as may be prescribed and the Tribunal may, on application, pass such order as it may deem fit. Explanation.-For the removal of doubts, it is hereby declared that the provisions of section 66 shall not apply to the reduction of share capital effected in pursuance of the order of the Tribunal under this section. 8. In view of the provision of Section 230 and the decision of the Hon ble Supreme Court in Meghal Home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be completed preferably within two years. Therefore, in S.C. Sekaran v. Amit Gupta Ors. (Supra), this Appellate Tribunal allowed 90 days time to take steps under Section 230 of the Companies Act, 2013. In case, for any reason the liquidation process under Section 230 takes more time, it is open to the Adjudicating Authority (Tribunal) to extend the period if there is a chance of approval of arrangement of the scheme. 18. During proceeding under Section 230, if any, objection is raised, it is open to the Adjudicating Authority (National Company Law Tribunal) which has power to pass order under Section 230 to overrule the objections, if the arrangement and scheme is beneficial for revival of the Corporate Debtor (Company). While passing such order, the Adjudicating Authority is to play dual role, one as the Adjudicating Authority in the matter of liquidation and other as a Tribunal for passing order under Section 230 of the Companies Act, 2013. As the liquidation so taken up under the I B Code , the arrangement of scheme should be in consonance with the statement and object of the I B Code . Meaning thereby, the scheme must ensure maximisation of th ..... 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