9911796707
TMI Blog2023 (11) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate JUDGMENT ( Virtual Mode ) [ Per : Shreesha Merla , Member ( Technical ) ] 1. Aggrieved by the Impugned Order dated 09/01/2023 read with the Corrected Order dated 23/01/2023, passed by the 'Adjudicating Authority' / 'National Company Law Tribunal, Hyderabad Bench - II', in C.P.(IB) No. 102/7/HDB/2019, the Suspended Director and Promotor of the Corporate Debtor Company, preferred this Appeal, under Section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'the Code'). 2. By the Impugned Order, the Adjudicating Authority has allowed the Application filed by the Resolution Professional ("RP") of the Corporate Debtor Company seeking direction to liquidate the Corporate Debtor and to appoint the Applicant as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected and the RP had kept two Resolution Plans for re-voting purpose. Apart from raising various allegations against the RP, it is submitted that in the 11th CoC Meeting held on 25/10/222, the RP had sought to file an Application seeking direction for Liquidation. 4. It is submitted by the Learned Counsel for the Appellant that the Appellant was kept in the dark about the initiation of Liquidation Proceedings and also regarding the Resolution of the e-voting of the two Resolution Applicants. It is contended that the RP ought to have taken adequate steps for recovering the Applicant's huge receivables but instead did not make any effort to revive the Company and went ahead to file an Application for Liquidation. In the 11th CoC Meeting, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 11/09/2020. Subsequently, the NCLAT Order was set aside by the Hon'ble Supreme Court vide Order dated 13/09/2022 in Civil Appeal No. 3849/2020 and the Order of the Adjudicating Authority admitting the Corporate Debtor Company into CIRP on 27/08/2019, was restored. In the meantime, the CoC in its 11th Meeting decided to explore the possibility of sale of the Corporate Debtor Company as 'a Going Concern' as per Regulation 39 of the IBBI (Resolution Process for Corporate Persons) Regulations, 2016. Section 33 which deals with 'Initiation of liquidation' reads as under :- Section 33. - Initiation of liquidation (1) Where the Adjudicating Authority - (a) before the expiry of the insolvency resolution process period or the maximum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the information memorandum.] (3) Where the resolution plan approved by the Adjudicating Authority [under section 31 or under sub-section (1) of section 54-L,] 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 (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 1iquidation order as referred to in sub-clauses (i), (ii) and (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode have been satisfied, IBC is a time bound process and the commercial wisdom of the CoC is to be given paramount importance for approval/rejection of a Resolution Plan. The Hon'ble Supreme Court in a catena of Judgments namely, 'Kalparaj Dharamshi v. Kotak Investment Advisors Ltd.' reported in [(2021) 10 SCC 401], 'K. Sashidhar Vs. Indian Overseas Bank' reported in [(2019) 12 SCC 150] has laid down that the Judicial review of the Tribunals is limited in terms of impeding the commercial wisdom of the CoC except when a Plan is not in adherence to Section 30 (2) of the Code. 7. In the instant Case, there is no Resolution Plan in the offing, and the CoC has approved the Liquidation with a 100 % Voting as mandated under Section 33 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
