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TMI Blog2021 (3) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... hashvata Shukla, Ms. Rajshree Chaudhary, Mr. Shivkrit Rai, Advocates for Intervenor ('Om Shri Shubh Labh Agritech Pvt. Ltd.) JUDGEMENT DR. ASHOK KUMAR MISHRA, TECHNICAL MEMBER. 1. The present Appeal is filed by the Appellant - Mr. Kuldeep Verma, Resolution Professional ('RP') of M/s. K.S Oils Ltd, under Section 61 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') against the Impugned order dated 01.01.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Indore Bench at Ahmedabad Court No.1) in IA No. 165/2018 in CP(IB) No. 32 of 2017 (TP No. 60/2019). 2. The grievance of the Appellant - RP is that as on 01.01.2021 i.e. the date of hearing by the Adjudicating Authority as above, despite lapse of 981 days from the date of filing (23.04.2018/26.04.2018) of the Application i.e. IA No. 165/2018 seeking broadly to consider passing orders for liquidation of the Corporate Debtor i.e. M/s. K.S Oils Ltd., as no Resolution Plan has been approved by the Committee of Creditors (CoC) before the maximum period permitted for the Corporate Insolvency Resolution Process ('CIRP') under Section 12 of the Code: instead the Adjudicating Authority has dismissed the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n IA No. 165 of 2018 to consider passing of orders for liquidation of the Corporate Debtor under Chapter -III of the Code. However, the Adjudicating Authority asked the RP to consider addendum -III dated 04.05.2018 submitted by SREI to the Resolution Plan as stated above for placing before the CoC. The RP placed the said addendum before the CoC on 13.06.2018; the same was rejected by e-voting of 76.50%. The RP filed affidavit on 27.06.2018 apprising the Adjudicating Authority. The Adjudicating Authority again asked the RP to consider the Addendum -IV dated 09.07.2018 to the said Resolution Plan and place before the CoC. The CoC members filed individual affidavit confirming that Addendum -IV has been rejected by 69.14% voting. SREI again submitted Addendum -V dated 11.04.2019 and RP was asked by Adjudicating Authority to place before the CoC. The RP convened the meeting of the CoC on 12.07.2019 and Addendum -V was rejected by 64.16% of the voting. The Adjudicating Authority vide its order 08.08.2019 again directed CoC to consider positive workable solution for the Corporate Debtor by considering any of the 5(Five) Addendum. The RP called 10th meeting of the CoC on 29.08.2019 and CoC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication under Section 33 of the 'I&B Code' and pass appropriate order in accordance with law. The appeal stands disposed of. e. Even after this Appellate Tribunal order, the Petition before the Adjudicating Authority was heard on 22.11.2019, 13.12.2019, 19.12.2019, 03.01.2020, 23.01.2020, 03.07.2020, 10.09.2020, 16.09.2020, 28.09.2020, 08.10.2020, 27.11.2020, 10.12.2020 and finally 01.01.2021 dismissed being not maintainable & Infructuous. f. In the meantime, IA No. 357 of 2021 has been filed on 25.02.2021 vide Diary No. 25695 by Om Shri Shubh Labh Agritech Private Limited, Gwalior seeking intervention in the matter under the provisions of Rule 11 of NCLAT Rules, 2016. Learned Senior Counsel has argued that the Applicant proposes to infuse Rs. 310 Crore (Page 3 para 4 of the IA No. 357 of 2021) in the Corporate Debtor (which at the time of hearing was shown to increase to Rs. 625 Crore Page 79 of the IA No. 357 of 2021) within a period of 270 days from the date of approval of the Resolution Plan by Adjudicating Authority with a view to revive its operations. However, it is to be mentioned here that the RP published Expression of Interest ('EOI') on 14.11.2017 against which S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Regulations nor by the Code. Learned Senior Counsel representing Respondent No.1 to 13 has already vehemently objected the intervention application. Considering the above said aspect, we are no way inclined to allow the Intervention Application and accordingly, the Intervention Application is rejected at the very threshold. However, the Intervener is free to move for a compromise or arrangement under IBBI Liquidation Process Regulations, 2016 if advised and permitted under its Regulation 2-B. d) It is unfortunate to observe that even after the lapse of 981 days and repeated compliance by the RP of the direction of the Adjudicating Authority; the Adjudicating Authority has not yet considered initiation of Liquidation as per Section 33 / Chapter -III of the 'Code'. Neither the Adjudicating Authority nor the Appellate Authority is supposed to look into the commercial wisdom of CoC or to reverse the Commercial wisdom of CoC as repeatedly observed by Hon'ble Supreme Court in Committee of Creditors of Essar Steel India Limited Through Authorised Signatory Vs. Satish Kumar Gupta & ors.in Civil Appeal No.8766-67 of 2019 dated 15.11.2019 and K Sashidhar Vs. Indian Overseas Bank & O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor, any person other than the corporate debtor, whose interests are prejudicially affected by such contravention, may make an application to the Adjudicating Authority for a liquidation order as referred to in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1). (4) On receipt of an application under sub-section (3), if the Adjudicating Authority determines that the corporate debtor has contravened the provisions of the resolution plan, it shall pass a liquidation order as referred to in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1). (5) Subject to section 52, when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor: Provided that a suit or other legal proceeding may be instituted by the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority. (6) The provisions of sub-section (5) shall not apply to legal proceedings in relation to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (7) The order for liquidation under this section shall be deemed to be a not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nouncement stating that Corporate Debtor is in liquidation. c. The Moratorium declared under Section 14 of the IBC 2016 shall cease to operate here from. d. Subject to section 52 of the IBC 2016 no suit or other legal proceedings shall be instituted by or against the Corporate Debtor. This shall however not apply to legal proceedings in relation to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. e. All powers of the Board of Directors, Key Managerial Personnel and partners of the Corporate Debtor shall cease to have effect and shall be vested in the Liquidator. f. The liquidator shall exercise the powers and perform duties as envisaged under Sections 35 to 50 and 52 to 54 of the Code, read with Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations 2016. g. Personnel connected with the Corporate Debtor shall extend all assistance and cooperation to the Liquidator as will be required for managing its affairs. h. Copy of the Order shall be furnished to the IBBI, to the Regional Director (North Western Region), Ministry of Corporate Affairs; Registrar of Companies, the Liquidator and the Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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