TMI Blog2020 (12) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor, except when and to the extent of the business of the Corporate Debtor to be continued during the Liquidation Process by the Liquidator. Apart from this once CIRP is initiated under IBC, the management vests in IRP/RP and if Liquidation Order gets passed the Powers and Duties of the Liquidator as in Section 35 of IBC vest with Liquidator. Without liquidator taking steps no such application to obtain Certificate of MSME could have been filed by the Appellant. The Learned Counsel for the Appellant has submitted that this was not the reason for the Adjudicating Authority to hold against the Appellant. If just by filing application Certificate is obtained and there are no verifications or checks, it would be matter of concern. We find that it is a matter of record in the present matter and matter of applying the law. We find that the Applicant/Appellant could not have moved the Authorities for Certificate under MSME by-passing the Liquidator and such action must be held as illegal. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 384 of 2020 - - - Dated:- 8-12-2020 - [Justice A.I.S. Cheema] Member (Judicial) And [Dr. Ashok Kumar Mishra] Member (Technica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Plant Machinery/Equipment) as only two lakhs while the schemes proposed itself stated the value of the property itself to be around ₹ 67 crores. The Adjudicating Authority observed in Paragraph 8 (as at Page 11 of the Impugned Order which has 3 para 8 ), as under:- 8. The Learned Counsel for the Respondent, contradicting the submissions made by the Learned Counsel for the Liquidator has emphatically contended that the Corporate Debtor is an MSME and as such the ineligibility in relation to Section 29 A of the IBC, 2016 would have no bearing upon them by virtue of Section 240A of the IBC, 2016. A perusal of the MSME Certificate attached with the typed set filed by the Respondent would goes on to show that the said Certificate was obtained on 02.04.2018, which is after the initiation of the CIRP by this Tribunal. Further, it may be seen in the said MSME Certificate that the Investment (Plant Machinery/Equpiments) is shown as ₹ 2 Lakhs, whereas the Liquidation value as per the Scheme itself is stated to be around ₹ 67 Crores. Thus, it can be seen that the Respondent is trying to play a fraud upon this Tribunal, in order to gain backdoor entry to the asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier resolution plan which was approved by this Hon ble Tribunal. 9. The scheme does not seek to restore the management nor is it one which seeks to reclaim the assets of the Corporate Debtor but it is only to settle the dues of the Corporate Debtor. Since an outright sale of the property would fetch only ₹ 60 Crores at maximum and none of the other creditors apart from the financial creditor would be settled. Therefore it is submitted that the proposed scheme takes into consideration all the stake holders of the Corporate Debtor and outright rejection on the ground of disqualification under section 29-A of the Code would indeed be gravely prejudicial to the various other creditors and stake holders of the Respondent apart from the Respondent herein who would also be put in irreparable loss. 6. The argument is that the Liquidator had also agreed with the Appellant that the Appellant is only a facilitator of the development of the property. Thus, according to the Learned Counsel, the schemes could not have been thrown out by the Adjudicating Authority without examining them in details and without giving opportunity to the Appellant on the basis that the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all these contents, the averment is that in effect it is the Appellant alone who would be doing everything and thus, the argument is that the Adjudicating Authority rightly found to the effect that the Appellant who was ineligible under Section 29-A was trying to make back-door entry. 9. Learned Counsel for the Liquidator further submitted that during pendency of the Liquidation Proceedings, the Appellant made the E-Application on 27th December, 2019to Ministry of MSME as can be seen from Annexure R- 8 of the Reply (Diary No. 22198). The argument is that Section 33 (7) of IBC if considered, the Appellant had no authority to make the Application as the Sub- Section 7 reads as under: 33 (7) The order for liquidation under this section shall be deemed to be a notice of discharge to the officers, employees and workmen of the corporate debtor, except when the business of the corporate debtor is continued during the liquidation process by the liquidator. On this basis, the Learned Counsel is submitting that the Applicant/Appellant could not have obtained such Certificate once the Corporate Debtor was under CIRP or in Liquidation Proceedings. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that it is a matter of record in the present matter and matter of applying the law. We find that the Applicant/Appellant could not have moved the Authorities for Certificate under MSME by-passing the Liquidator and such action must be held as illegal. 13. It is argued that chance may be given to the other persons to propose scheme and Appellant would not take the lead. However, Learned Counsel for the Liquidator has pointed out that during the pendency of the Liquidation Proceedings, auction has already taken place on 25th September, 2020 of the property of the Corporate Debtor in Liquidation and on 27th November, 2020 Letter of Intent has already been issued to one Sri Balaji Vidyapith. It is stated that there were workmen s dues who were not satisfied with the action of the Liquidator with regard to their dues and they have filed Writ Petition in the High Court and the High Court has directed to keep the successful bid in cover at the moment. Learned Counsel for Respondent says Liquidator will meet that challenge in High Court. 14. These further developments will take their own course. We do not find it appropriate to reverse the process to give any further opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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