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TMI Blog2023 (1) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted default in repayment of the loan facilities. The Financial Creditor initiated proceedings under Section 13, sub-section 4 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "SARFAESI Act") by taking possession of the secured assets. (ii) An order dated 08.07.2022 was passed by Adjudicating Authority commencing the Corporate Insolvency Resolution Process ("CIRP") against the Corporate Debtor. (iii) The Appellant filed its claim in Form-C on 09.09.2022, which was provisionally accepted. The Committee of Creditors ("CoC") was constituted with Appellant as the sole Member of the CoC. On 07.10.2022, in accordance with the approval of the CoC, the Resolution Professional ("RP") published Form-G, wherein the last date for receipt of Expression of Interest ("EOI") was 24.10.2022. The RP convened the CoC Meeting on 19.10.2022 with sole agenda pertaining to eligibility criteria vis-à-vis extension of time seeking EOI by issuing/ revising amended Form-G. (iv) On 19.10.2022 in 3rd CoC Meeting, CoC passed Resolution for liquidation of the Corporate Debtor. In pursuance of Resolution dated 19.10.2022, the RP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the CoC for liquidation was in the commercial wisdom of the CoC, which ought not to have been interfered by the Adjudicating Authority. The learned Counsel for the Appellant has also relied on the judgment of the Hon'ble Supreme Court in Vidarbha Industries Power Limited vs. Axis Bank Ltd. - (2022) 8 SCC 352. 4. We have considered the submission of learned Counsel for the Appellant and perused the records. 5. Before we proceed to consider the submission of learned Counsel for the Appellant, it is necessary to notice the relevant statutory provisions regulating the liquidation. Section 33, sub-sections (1) and (2), which are relevant in the present case are as follows: "33. Initiation of liquidation. - (1) Where the Adjudicating Authority, - (a) before the expiry of the insolvency resolution process period or the maximum period permitted for completion of the corporate insolvency resolution process under section 12 or the fast track corporate insolvency resolution process under section 56, as the case may be, does not receive a resolution plan under sub-section (6) of section 30; or (b) rejects the resolution plan under section 31 for the non-compliance of the requireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Memorandum in electronic form to each Member of the Committee within two weeks of his appointment, but not later than 54th day from the insolvency commencement date, whichever is earlier. Regulation 36, sub-regulation (1) provides as follows: "36. Information memorandum. -- (1) Subject to sub-regulation (4), the resolution professional shall submit the information memorandum in electronic form to each member of the committee 86[on or before the ninety-fifth day from the insolvency commencement date. " 7. Regulation 36A provides for 'Invitation for Expression of Interest'. In the present case invitation for Expression of Interest was issued with the approval of CoC on 07.10.2022. As per the statutory Scheme contained in Regulation, the Information Memorandum must be prepared and circulated to the Members of the Committee of Creditors prior to issuance of Form-G. 8. There is no material to indicate that CoC has taken into consideration the Explanation to Section 33, sub-section (2) before taking a decision to liquidate the Corporate Debtor. Explanation to Section 33, sub-section (2) has to be given some meaning. 9. The learned Counsel for the Appellant has relied on judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the CoC was in the facts of the present case and it cannot be said that whenever decision is taken for liquidation the same is not open to judicial review by the Adjudicating Authority and this Appellate Tribunal. It depends on the facts of the each case as to whether the decision to liquidate the Corporate Debtor is in accordance with the I&B Code or not. With these observations, the Appeal is dismissed. 11. The judgment of this Tribunal in paragraph 7 in Sreedhar Tripathy's case, makes it clear that decision of the CoC, which was approved was in the facts of that case and it was clarified that decision taken by the CoC is subject to judicial review in the facts of the particular case and the Tribunal can very well look into as to whether the decision is in accordance with the Code or not. 12. The learned Counsel for the Appellant further relied on judgment of Hon'ble Supreme Court in Vidarbha Industries Power Limited, wherein in paragraphs 76 and 77 following has been laid down: "76. The fact that the legislature used "may" in Section 7(5)(a) IBC but a different word, that is, "shall" in the otherwise almost identical provision of Section 9(5)(a) shows that "may" and "sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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