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TMI Blog2021 (3) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... al be pleased to appoint applicant as Liquidator under Section 34(1) of the Insolvency and Bankruptcy Code, 2016; d. Any other orders/directions as deemed fit and necessary by this Hon'ble Tribunal in the interest of justice and equity. 2. The counsel for the Applicant submitted that this Tribunal vide an order dated 07.08.2018 admitted the captioned company petition filed under Section 9 of the Code by Pariman Enterprises Pvt. Ltd. (hereinafter referred to as the "Operational Creditor") and Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor. One Mr. Dhananjay Kumar Vatsyayan was appointed as the Interim Resolution Professional (IRP) of the Corporate Debtor. The IRP had made public announcement under Section 13 of the Code on 13.10.2018 and later the CoC was formed on 15.11.2018. 3. During the 1st meeting of the CoC held on 05.11.2018, CoC had passed a resolution for replacement of the IRP and appointment of the applicant as the Resolution Professional (RP). Later, this Tribunal vide its Order dated 14.12.2018 passed in M.A. 1426/2018, confirmed the replacement of the IRP with the applicant to perform duties of the RP. 4. During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chambers, Dr. Sunderlal Behel Marg, Ballard Pier, Mumbai- 400001. The same was attended by the Financial Creditors namely Bank of Baroda representing 100% of Financial Creditors. The CoC considered the following relevant points: a. I say that the Financial Creditors present in the meeting noted the current state of Business Operations of the Corporate Debtor and the Assets of the Company. At present, there is no operation in the Corporate Debtor and the only asset with the Company is its office. The Company was engaged in trading business and hence does not have any manufacturing facility. A list of trademark certificates registered in INDIA, list of products registered in Kenya and Nigeria were provided. The said registrations remain valid upto 2018-19 and the Company is in the process of renewing the same. The value of these Product Registrations cannot be ascertained. b. The Letter dated 20.06.2019 was submitted by suspended director Mr. Dilip Muchalla which was read by chairman and brief discussion on the same was made. Further evaluation on supporting submitted along with letter containing matters related stock destruction, rent and liquidation was to be considered for wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and violating the principles of the Code. 12. The suspended director further submitted that in the 3rd meeting of the CoC which was held on 15.03.2019, the RP had asked the CoC to consider the further course of action through preparing Information Memorandum and invitation of Expression of Interest and Resolution plan. The CoC members decided to defer this item to the next meeting of the CoC and requested for additional information on the current state of business. However, no meeting of the CoC was then held for the next 3 months. 13. He also submitted that vide an email dated 07.06.2019, the Corporate Debtor had informed their Financial Creditor that they have identified an investor who was desirous and keen to acquire the Corporate Debtor. However, since the Bank of Baroda, representing 100% of the Financial Creditors had not advised and/or invited any Expression of Interest, the investor was not able to submit a Resolution Plan or be given an adequate opportunity to revive the Corporate Debtor. Also, the voting which was held for putting the company into liquidation was a mere formality because only Bank of Baroda is the 100% creditor who wanted the company to be into liqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the situation have decided to liquidate the company with 100% majority. We have carefully perused the record available and have reached to a conclusion that the Corporate Debtor is nonoperational for last two years and the only asset left with it is a shop at Borivali. The promoter of the Corporate Debtor had also given proposal for One Time Settlement through Asset Purchase by Asset Reconstruction Company which is not acceptable to the CoC. 17. Having considered the facts and circumstances, we believe it is a settled principle of law regarding the Commercial Wisdom of the CoC to liquidate the Corporate Debtor and we cannot interfere in the same if it is allowed with the requisite majority. Here we would like to refer to the decision of the Hon'ble Supreme Court of India in the matter of K. Sashidhar vs Indian Overseas Bank 2019 SCCOnline SC 257 wherein it was held that: "53. Significantly, the report mentions that the empirical record suggests that the apprehension regarding companies are being put into liquidation by minority creditors is pre mature and further that the objective of the Code is to respect the commercial wisdom of the CoC." Also, it was decided by the Apex C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Board of Directors, key managerial persons, the partners of the Corporate Debtor hereafter ceased to exist. All these powers henceforth vest with the Liquidator. g. That the personnel of the Corporate Debtor are directed to extend all co-operation to the Liquidator as required by him in managing the liquidation process of the Corporate Debtor. h. That on having liquidation process initiated, subject to Section 52 of the Code, no suit or other legal proceeding shall be instituted by or against the Corporate Debtor save and except the liberty to the liquidator to institute suit or other legal proceeding on behalf of the Corporate Debtor with prior approval of this Adjudicating Authority. i. This liquidation order shall be deemed to be a notice of discharge to the officers, employees and workmen of the Corporate Debtor except to the extent of the business of the Corporate Debtor continued during the liquidation process by the Liquidator. With the above directions, this application i.e. I.A. No. 2702 of 2019 is hereby allowed and disposed of. M.A. 2839 of 2019 which was filed by the RP under Section 66 of the Code has been kept pending to be pursued by the liquidator ..... X X X X Extracts X X X X X X X X Extracts X X X X
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