TMI Blog2021 (8) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... The matter is pending only for appointment of the RP as a liquidator as no decision has been taken by the CoC in this respect. Whenever the Adjudicating Authority pass 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 Adjudicatory Authority in specified form, act as the liquidator for the purposes of liquidation unless replaced by the Adjudicating Authority under sub-section (4) Section 34 of IBC 2016. Thus, so far as the liquidation order under Section 33(1) of the IBC, 2016 is concerned, the first part of the order dated 14.06.2019 shows that the order of liquidation was passed on two grounds i.e. no resolution plan was received and the period of CIRP was already over. Hence, in view of Section 34(1) of the IBC, 2016, unless the Resolution Professional is replaced under Sub-section 4 of Section 34 of IBC, 2016, he shall continue to act as Liquidator - It is also the admitted position of law that there is no power for review of order under the IBC and once the liquidati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated against the Corporate Debtor vide order dt. 25.07.2018 and the applicant herein was appointed as the Interim Resolution Professional. Subsequently, the Applicant was confirmed as the Resolution Professional ( RP ). The initial 180 days period of CIRP expired on 20.01.2019, which was extended by a further period of 90 days up to 20.04.2019 vide order dt. 15.01.2019. Thereafter, a period of 41 days was further excluded from the CIRP period vide order dt. 12.04.2019. The extended CIRP period has expired on 31.05.2019 without any resolution plan being approved by the Committee of Creditors ( CoC ). ii. List of the important dates and events (page 5 to 9 of the brief synopsis) are given below:- List of Important Dates and Events Sl. No Date Event 1. 25th July, 2018 Commencement of CIRP and appointment of IRP on application under section 9 of I B Code by M/s. Super Print Services through its Sole Proprietor. 2. 29th July, 2018 Publication of Public Announcement in compliance to sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply/clarification received in the matter. 17. 20th April, 2019 COC with majority vote of 72.88% approved the refection of the Resolution Applicant/Promoters under 9A disability in its 12th meeting, decision of the COC shared with the Promoter cum Resolution Applicant. 18. 26th April, 2019 On Approval of COC, a fresh Form G published by extending the last date of EOI to 26th April, 2019. One EOI received thereafter however no Resolution Plan received till last date of receipt of Resolution Plan or date of expiry of CIRP. 19. 16th May, 2019 I.A. 607/2019 filed by Suspended Board of Directors cum RA for declaring their eligibility under section 29A against the decision of the Committee of Creditors. 20. 27th May, 2019 14th meeting of the COC without passing any resolution of liquidation and but majority decision as Lot Hon'ble Tribunal to decide the liquidation proceedings in accordance with section 33(1)(o) of the code. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution Professional under section 60(5) read with Rule 11 for appropriate direction to Resolution Professional with respect to Resolution Application of M/s. Hindustan Aqua Private 35. 19th April, 2021 Pursuant to order dated 19.05.2021, this synopsis is being filed. iii. That the applicant/RP invited Expression of Interest vide Form-G dated 08.10.2018, which attracted only one resolution plan from the Promoters cum Directors of the Corporate Debtor. However, they were disqualified under the provisions of Section 29A of the Code vide Resolution of COC dt. 20.04.2019. The said decision of the CoC was challenged by the said applicant, which is currently pending adjudication before this Tribunal in C.A. No. 607/2019 dated 16.05.2019. iv. That in the meantime, upon expiry of the CIRP period and in view of the no decision taken by the CoC, the application of liquidation bearing C.A. No. 731/2019 was filed by the applicant/RP before this authority, which was partially allowed vide order dt. 14.06.2019. The relevant extract of the said order is reproduced below: v. CA 731/2019 has been filed p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Aqua Private Limited again requested for consideration of their Expression of Interest in the matter for submission of Resolution Plan. That on 13.04.2021, the Applicant has also received an unsolicited Resolution Plan from M/s. Hindustan Aqua Private Limited. xiv. That till date the Corporate Debtor is neither resolved nor liquidation proceedings have been initiated due to ongoing litigation in the matter, which has deteriorated the liquidation value further along with adding financial burden of lease rent of the Factory Premises. xv. That proviso 12(3) as per I B Code (Amended Act) 2019 enacted on 06.08.2019 has given a period of another 90 days from the date of such amended act. That prior to filing of Liquidation Application, no such provision of 90 days period in concluding CIRP was available to the Applicant. It became available to the Applicant only after enactment dated 06.08.2019 and from that date the Corporate Debtor has been facing litigation. Neither the CIRP is concluded nor the Liquidation process is initiated. xvi. That in view of the judgment of the Hon'ble Supreme Court in the matter of Committee of Creditors of Essar Steel v. Satish Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist of resolution applicants was notified on 16.11.2018 and it is further seen that the last date for submission of the Resolution Plan was 06.12.2018. 10. We further notice that the CoC in its meeting dated 20.04.2019 by majority vote of 72.88% rejected the Resolution Plan submitted by Resolution Applicant/Promoters due to their disability under section 29A of the IBC and thereafter, on 26.04.2019, a fresh Form G was published by extending the last date of EOI to 26.04.2019 but no Resolution Plan was received till the last date of receipt of the Resolution Plan or date of expiry of CIRP. 11. It is further seen that in the meeting dated 27.05.2019, the CoC passed a resolution Let Hon'ble Tribunal to decide the liquidation proceedings in accordance with Section 33(1)(a) of the Code. And accordingly, the RP has filed an application bearing CA No. 731/2019 under Section 33 of the IBC, 2016, on expiry of the period of CIRP. This Adjudicating Authority vide order dated 14.06.2019 passed the following order (at page 23 and 24 of the Application):- 12. We further notice that another CA No. 827/2019 was listed for hearing on 04.07.2019 and in the course of hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the information memorandum. (3) Where the resolution plan approved by the Adjudicating Authority under section 31 or under sub-section (1) of section 54L, is contravened by the concerned corporate debtor, 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 (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 (Hi) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency professional to be appointed as a liquidator. (6) The Board shall propose the name of another insolvency professional along with written consent from the insolvency professional in the specified form within ten days of the direction issued by the Adjudicating Authority under sub-section (5). (7) The Adjudicating Authority shall, on receipt of the proposal of the Board for the appointment of an insolvency professional as liquidator, by an order appoint such insolvency professional as the liquidator. (8) An insolvency professional proposed to be appointed as a liquidator shall charge such fee for the conduct of the liquidation proceedings and in such proportion to the value of the liquidation estate assets, as may be specified by the Board. (9) The fees for the conduct of the liquidation proceedings under sub-section (8) shall be paid to the liquidator from the proceeds of the liquidation estate under section 53. 15. When we consider both the provisions together, it is seen that under Section 33 of the IBC, an Adjudicating Authority is vested with the power to pass the liquidation order. Whereas under Section 34 of the IBC, 2016, the Adjudicating Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section 4 of Section 34 of IBC, 2016, he shall continue to act as Liquidator. 21. Therefore, we are of the considered view that so far as the order dated 04.07.2019 passed in CA/827/2019 is concerned. From the perusal of that order, we notice that the hearing on the point of confirmation and appointment of liquidator under Section 34(4) of the IBC, 2016 pending for consideration before this Adjudicating Authority was deferred. Nor the order dated 14.06.2019, by which the liquidation order was passed, has been recalled. 22. It is also the admitted position of law that there is no power for review of order under the IBC and once the liquidation order is passed by this Adjudicating Authority on 14.06.2019, there is no scope to recall. The subsequent order dated 04.07.2019 cannot be read as an order of recall of the order of liquidation, rather it can be treated as an order which deferred the matter that was for consideration i.e., confirmation of the liquidator under Section 34(4) of the IBC, 2016 only. 23. Hence, we find no force in the contention of the Applicant and no reason to give any direction to the applicant or the COC in respect of the Expression of Interest/Re ..... 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