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TMI Blog2023 (9) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... become infructuous. 2. Brief facts of the case necessary to be noticed for deciding this Appeal are:- The Adjudicating Authority on an application filed by 'M/s. Toyoto Kirloskar Motors Private Limited' under Section 9 of the I&B Code passed an order dated 30.09.2019 initiating the CIRP against the Corporate Debtor- 'R.S. Motors Private Limited'. In pursuance of public announcement issued by the Interim Resolution Professional (IRP), two Financial Creditors namely- 'Tata Capital Housing Finance Limited' and 'Reliance Commercial Finance Limited' filed their claim. On the Resolution of the CoC, Form-G was also issued for invitation of Expression of Interest. An IA No. 5 of 2020 was also filed by the Appellant seeking a direction to the Resolution Professional to verify the claim made by the Financial Creditors. The CoC also appointed a Forensic Auditor to conduct forensic audit of the Corporate Debtor. The CIRP period of 270 days was coming to an end on 30.06.2020. On an Application filed by the Resolution Professional by an order dated 31.07.2020 CIRP period was extended 90 days i.e. from 01.07.2020 to 28.09.2020. On 31.08.2020, Forensic Auditor submitted its report which reveale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and orders have been passed without completing the necessary process in the CIRP, order deserves to be set aside. 5. Learned Counsel for the erstwhile Resolution Professional opposing the submissions of the Counsel for the Appellant submits that in reply to the notice issued by this Tribunal vide its order dated 01.11.2022, reply has been filed where detailed reply has been given regarding compliance of all orders issued by the Adjudicating Authority i.e. orders dated 26.11.2020, 18.11.2021, 17.12.2021 and 07.03.2022. It is submitted that the Resolution Professional has conducted the CIRP in accordance with relevant CIRP Regulations, 2016. The Resolution to liquidate the Corporate Debtor has been passed with 100% CoC vote in its 11th CoC meeting held on 28.09.2020. No Resolution Plan was forthcoming in the CIRP, CoC has rightly passed the resolution to liquidate. It is submitted that the period of 270 days was over and extension was granted by the Adjudicating Authority i.e. 90 days which was also over. It is submitted that the Appellants who were the suspended Directors have not been co-operating with the Resolution Professional and on application under Section 19(2) of the IBC, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IRP period was coming to an end on 28.09.2020 on which date the CoC held its 11th CoC meeting. In the 11th CoC meeting held on 28.09.2020, following resolution was passed in Agenda Item No.5:- "5. TO TAKE DECISION RELATED TO ONGOING CORPORATE INSOLVENCY RESOLUTION PROCESS: The chairman informed that the process of Corporate Insolvency Resolution Process is verge of completion committee has to take decision related to the ongoing corporate insolvency resolution process as no possibility of resolution plan is there. Chairman further added as per section 12 of the code extension of the CIRP can be taken once and that has been given by the Hon'ble tribunal vide order dated 31.07.2020. Discussion held related to the process of liquidation and the appointment of liquidator needs to be finalized. Mr. Himanshu Kumawat (on behalf of Reliance Commercial Finance Limited) having voting share 76.88% proposed the resolution and seconded by Mr. Dhirendra Singh (on behalf of Tata Capital Housing Finance Limited) having 23.12% voting share that company needs to be transfer in the process of liquidation and the appointment of liquidator is deferred for the next meeting which to be held on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1). [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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Professional. The CoC has not considered all the requisites of the Code and regulations in the liquidation process. Hence to enable the RP and COC to take appropriate steps, list the IA No.325/JPR/2020 on 17.12.2020." 15. There were subsequent three orders also passed by the Adjudicating Authority while hearing of IA No.325/2020. In reply, which has been filed by erstwhile Resolution Professional with regard to each direction issued by the Adjudicating Authority relevant steps taken by the Resolution Professional have been stated by Resolution Professional. A perusal of the reply of the Resolution Professional indicate that steps were taken by the Resolution Professional in compliance with the direction passed by the Adjudicating Authority in IA No. 325/2020. 16. The main issue to be considered in this Appeal is as to whether Adjudicating Authority committed error in allowing IA No.325/2020 directing for liquidation of the Corporate Debtor. As noted above, the decision of the CoC in 11th meeting of the CoC to liquidate the Corporate Debtor was taken with 100% vote share which resolution has already been extracted above. We have noted that timeline for CIRP even after extension o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Insolvency Resolution Process period has expired and the order of admission on application under Section 7 culminating in passing of impugned order of liquidation has not been assailed by the Appellant. Since, the Corporate Insolvency Resolution Process is over and all actions taken in such process go unassailed, we find no merit in the instant appeal. The appeal is accordingly dismissed." 19. When CIRP period was coming to an end on 28.09.2020, we are of the view that CoC, there being no Resolution Plan in the CIRP, had rightly passed a resolution to liquidate the Corporate Debtor with 100% vote share. The submission of the Appellant that Resolution Professional did not complete the various process including obtaining the Audit Report cannot be accepted. Forensic Audit Report was obtained by the Resolution Professional which was submitted on 31.08.2020 on the basis of which application I.A No. 291/2020 for avoiding transaction was already filed. The period of CIRP having coming to an end, CoC has no option but to take a decision of the liquidation of the Corporate Debtor. In the facts of the present case, we do not find any error in the decision of the Adjudicating Authority ..... 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