TMI Blog2020 (10) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... i, Member (J) And Prasanta Kumar Mohanty, Member (T) For the Appellant : Baiju Bhagat, Advocate, Saurabh N. Soparkar, Sr. Advocate, Monaal J. Davawala, Aditya Krishnamurthy, Tripti Sharma, Ruchir Goenka, Pabitra dutta, Advocates For the Respondent : Percy Kavina, Senior Counsel for Harmish K. Shah, Advocate ORDER Prasanta Kumar Mohanty, Member (T) 1. This I.A. No. 89 of 2018 has been filed under Section 33 and 34 of the Insolvency and Bankruptcy Code, 2016 by the Resolution Professional, Mr. Nitin Hasmukhlal Parikh before this Tribunal seeking liquidation of the Corporate Debtor on the ground that no resolution plan could be accepted, hence this application under Section 33 and 34 of the Insolvency and Bankruptcy Code, 2016. 2. The Financial Creditor filed a petition for initiation of Corporate Insolvency Resolution Process under Section 7 of the Code and an admission order was passed by this Adjudicating Authority on 23.05.2017, wherein moratorium was declared under Section 14 of the Code and appointed the Applicant Mr. Nitin Hasmukhlal Parikh as Interim Resolution Professional. 3. The Applicant has stated that first meeting of CoC was held on 20.06.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 110 be appointed as Liquidator of Corporate Debtor M/s. Bhatia Global Trading Limited as name of the Liquidator has been approved by 9 members of CoC and he is required to perform his duties as per Section 7. Since allegations have been made against the Liquidator by some of the Creditors, it is made clear that Resolution Professional is only a Facilitator and he is not the deciding authority for the claims and it is only the CoC who decides the claim. Therefore, I do not find any reason to differ from the decision of the CoC not to appoint Mr. Nitin H Parikh as the Liquidator of the Corporate Debtor. : In case some of the Operational Creditors who have complained against the proposed Liquidator, they may refer the matter to the IBBI as IBBI is the Regulator for all Insolvency Professionals registered with them for their investigations and doing the needful at their end. 10. Having gone through the papers submitted by the RP and the arguments of the learned Lawyer of the RP, I am of the view that present application filed under Section 33 of the Insolvency and Bankruptcy Code, 2016 for liquidation of the Corporate Debtor, Bhatia Global Trading limited and resolution passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uidation and also required to send tie copy of this order to the concerned Registrar of Companies as required under Section 33(1) of the Code. 19. The Liquidator is hereby advised to adhere to the time limit as stipulated for completion of Liquidation Process and perform all his functions and duties contemplated inter alia in Section 35, 36, 37, 38, 39, 40, 41, 43, 45, 50, 53, 54 of Insolvency and Bankruptcy Code, 2016 and Rules of 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 23, 25, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 41, 42, 44, 45 46 of Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 with utmost dedication, honesty and strictly in accordance with the provisions of the Code, Rules and Regulations. 20. Accordingly, this application is hereby allowed, directing the Liquidator appointed in this case to initiate liquidation process as envisaged under Chapter-III of Insolvency and Bankruptcy Board of India (Liquidation Process) Regulation, 2016 by following the liquidation process given in Insolvency and Bankruptcy Board of India (Liquidation Process) Regulation, 2016. Harihar Prakash Chaturvedi, Member (J) While agreeing with the conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection about the attitude and way of conducting the CIR Process by the RP and, thus, has expressed not only its dissatisfaction but raised doubt about his independence and impartiality. A perusal of material available on record shows that one of the claimants/objectors, viz., M/s.Vitol SA (Switzerland) has made complaint that it had lodged a claim of ₹ 532.91 crores against the corporate debtor company, M/s. Bhatia Global Trading Limited, but the RP did mit properly consider its claim and has rejected it arbitrarily. It is now well settled legal position, after the decision of the Honorable Supreme Court in the matter of ArecelorMittal IndiaPrivate Limited Vs. Satish Kumar Gupta Ors. and Swiss Ribbons Put. Ltd. Anr. Vs. Union of India Ors, that the RP has been vested with no such adjudicatory power. The RP's role is to collate the information about claim and to update the list of claim and to place it before the CoC for its proper consideration. In case the RP feels some procedural difficulty or hardship in respect of admissibility of such claim, then the RP is expected to consult with the CoC or he can move with an application before this Adjudicating Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority passes 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 Adjudicating Authority in specified form] act as the liquidator for the purposes of liquidation unless replaced by the Adjudicating Authority under sub-section (4). Thus, this Adjudicating Authority has been conferred with necessary power to replace the liquidator and may direct the Insolvency and Bankruptcy Beard of India (IBBI) to propose another name of Insolvency Professional to be appointed as Liquidator and the Board shall propose another name of IP, as per provisions of Section 34 of the I B Code. Considering such statutory provisions and keeping in view of the serious grievance made by one of the claimants/objectors by raising doubt about impartiality and independence of the RP, without expressing our view on merits of such allegation / contention, we feel appropriate to consider the paramount interest of the corporate debtor company proposed for liquidation and about the smooth con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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