TMI Blog2022 (2) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 12 of the fast track CIRP under Section 56, as the case may be, does not receive a resolution plan under sub-Section 6 of Section 30 or reject the resolution plan under Section 31 for non-compliance of requirement specified therein, in that case, the Adjudicating Authority shall pass an order for liquidation and under Section 33 sub-Section 2 of the IBC, the resolution professional at any time during the Corporate Insolvency Resolution Process but before the confirmation of resolution plan intimate the Adjudicating Authority of the decision of the CoC to liquidate the Corporate Debtor, then the Adjudicating Authority shall pass an order for liquidation - Here in the case in hand, admittedly, the CoC is not constituted even after the expiry of more than 365 days and the IRP has also not received any claim during the CIRP. Rather, the IRP has prayed for termination of the CIRP on the ground that he has not received any claim. There is no such provision under the IBC to terminate the CIRP once it is initiated, the only way is either to complete the CIRP by approval of the resolution plan or pass the order of liquidation under Section 33 of the IBC. Here in the case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 10th January, 2020 (not later than 3 days after receiving the certified copy of the order). b. Intimation of his appointment: The IRP had intimated the Corporate Debtor and its directors about his appointment via email dated 8th January, 2020 and solicited their cooperation in the matter. Intimation of IRP appointment was also given via speed post on 9th January, 2020 at the registered office of the Corporate Debtor and also at the addresses of the directors suspended board of the Corporate Debtor. c. Visiting the registered office to take control of the management of CD: On 13th January, 2020 the applicant/IRP had visited the registered office of the Corporate Debtor to take control of the management of the Corporate Debtor wherein Mr. Ashfaq Aalam had handed over few of the documents and assured the applicant/IRP that all other requisite documents and information as required and asked as per the email dated 08.01.2020 will be provided in the next 2 (two) days. Even after rigorous follow ups and requests the applicant/IRP is not having all the documents and information till date. d. The IRP had communicated with the respective banks wherein the CD had bank acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 Reminder Mail 5. 05.02.2020 Application by Interim Resolution Professional under Section 19(2) and 19(3) of the Insolvency and Bankruptcy Code, 2016 6. 03.03.2020 Notice for Hearing listed on 18/03/2020 for application filed u/s. 19(2) (3) of IBC, 2016. 7. 21.09.2020 Application for seeking Urgent Hearing of C.A. No. 1093/C-V/ND/2020 filed in petition No. IB-2863 (ND) 2019 titled Sunil Kumar vs. Nesa India Producer Company Limited 8. 7.01.2021 Serving of NCLT Order dated 17.12.2020 passed in the matter of application filed under Section 19(2) (3) of IB Code, 2016. h. After obtaining the mobile number of the Operational Creditor the applicant/IRP contacted him for depositing the sum of ₹ 2 lakhs along with GST as directed by the Hon'ble Tribunal however he refused to comply with the same. i. the Applicant very recently on 8th February, 2021 visited the registered offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor and Operational Creditor. But neither the directors of the suspended Board of the Corporate Debtor nor the Operational Creditor was present on the hearings dated 12.02.2020, 28.02.2020, 18.03.2020, 17.12.2020 and 15.01.2021 so far. x. The IRP had received Letter No. ROC/COMP/2020/9563 dated 19.05.2020 from Registrar of Companies, NCT Delhi and Haryana and Ministry of Corporate Affairs, Government of India on 10.06.2020 in the matter of complaint made by Sh. Rampal Singh Grade, Advocate against the corporate debtor. The IRP/Applicant had filed a reply to the above letter vide reply letter dated 18.06.2020 to the Registrar of Companies, NCT Delhi Haryana, and Ministry of Corporate Affairs, Government of India. xi. Neither the Operational Creditor has filed his claim nor any other claim been received by the IRP/Applicant. The applicant/IRP is not able to contact the Suspended Directors of the Corporate Debtor. The mobile number which is available with the applicant is either switched off or remains unanswered. Under these circumstances the IRP/Applicant is facing a lot of difficulty in carrying out the CIR process due to lack of requisite information and documents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire corporate insolvency resolution process and manage the operations of the corporate debtor during the corporate insolvency resolution process period: Provided that the resolution professional shall continue to manage the operations of the corporate debtor after the expiry of the corporate insolvency resolution process period, until an order approving the resolution plan under sub-section (1) of section 31 or appointing a liquidator under section 34 is passed by the Adjudicating Authority.] (2) The resolution professional shall exercise powers and perform duties as are vested or conferred on the interim resolution professional under this Chapter, (3) In case of any appointment of a resolution professional under sub-sections (4) of section 22, the interim resolution professional shall provide all the information, documents and records pertaining to the corporate debtor in his possession and knowledge to the resolution professional. 8. A bare perusal of the provision shows that the Resolution Professional is authorised to conduct the entire Corporate Insolvency Resolution Process and managed the operation of the Corporate Debtor, during the Corporate Insolve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (b) of sub-section (1). 2 [Explanation. - For the purpose of this sub-section, it is hereby declared that the committee of creditors may take the decision to liquidate the corporate debtor, any time after its constitution under sub-section (1) of section 21 and before the confirmation of the resolution plan, including at any time before the preparation of the information memorandum.] (3) Where the resolution plan approved by the Adjudicating Authority 3 [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), (iii) of clause (b) sub-section (1). (4) Oh 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IBC. 13. Here in the case in hand, admittedly, there is no resolution plan as there was no claimant and the CoC was not constituted till the date of filing the application. Under such circumstances, in our considered view, in terms of Section 33 sub-Section 1, the Adjudicating Authority is empowered to pass the liquidation order after the completion of the maximum period. Since, 330 days has already been completed and no resolution plan is received even the CoC is not constituted, therefore, instead of termination in the CIRP on the request of the applicant, we think it proper to pass an order under Section 33 of sub-Section 1 of the IBC to pass the liquidation order. 14. Accordingly, by exercising our power under Section 33 sub-Section (1)(a) pass the following order:- i. The Corporate debtor is liquidated with immediate effect in the manner provided under Chapter III Part II of the IBC 2016. ii. The liquidator is directed to take custody and control of the assets, property of the Corporate Debtor with immediate effect and made a public announcement clearly stating that the Corporate Debtor is under Liquidation in terms of Regulation 12 of the Insolvency and Bankru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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