2019 (8) TMI 1798 - AT - Insolvency and Bankruptcy

Appeal against liquidation order dismissed; exclusion of time period denied.

Avasarala Venkateshwra Rao Versus M/s. Servomax India Pvt. Ltd. & Ors.

The appeal against the order of liquidation under the Insolvency & Bankruptcy Code was dismissed by the Tribunal. The Appellant, claiming to be a ... Liquidation order - Section 33(1)(a) and 34 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- The Resolution Applicant having no right to file a Resolution Plan as held by Hon’ble Supreme Court in Arcelormittal India Private Limited vs. Satish Kumar Gupta and Ors. [2018 (10) TMI 312 - SUPREME COURT], the Resolution Applicant cannot file any application for exclusion of any period for the purpose of counting total period of 270 days for which it was open to the Committee of Creditors / Resolution Professional to file application for exclusion of time, for good ground and if the Resolution Plan is viable and feasible, Resolution Plan needs consideration, in absence of such application by the Committee of Creditors / Resolution Professional, no relief can be granted in an application preferred by the Appellant. Impugned Order need not be interfered - appeal disposed off. Issues:1. Appeal against the order of liquidation passed by the Adjudicating Authority under the Insolvency & Bankruptcy Code, 2016.2. Exclusion of days for counting the period of 270 days.3. Viability and feasibility of the Resolution Plans.4. Authority of the Resolution Applicant to file applications for exclusion of time.Analysis:1. The appeal was filed by the Appellant, claiming to be a 'Resolution Applicant', against the order of liquidation passed by the Adjudicating Authority under sections 33(1)(a) and 34 of the Insolvency & Bankruptcy Code, 2016. The liquidation order was issued at the instance of the 'Committee of Creditors' based on the application preferred by the 'Resolution Professional'.2. The Appellant sought exclusion of 126 days for counting the period of 270 days. However, it was argued that as per a Supreme Court ruling, the 'Resolution Applicant' does not have the right to file such applications for exclusion of time. This right lies with the 'Committee of Creditors' or 'Resolution Professional' if the Resolution Plan is viable and feasible. In the absence of such an application by the 'Committee of Creditors' or 'Resolution Professional', no relief can be granted in an application preferred by the Appellant.3. The Liquidator representing the Respondents submitted that none of the 'Resolution Plans' were found to be viable and feasible. It was highlighted that more than 270 days had passed, leading to the application for liquidation. The Adjudicating Authority found that the Plans submitted by different parties required a significant number of years for resolution, which was not acceptable due to the need for higher realisation in a shorter time frame.4. The Tribunal, comprising Justice S. J. Mukhopadhaya, Justice A.I.S. Cheema, and Kanthi Narahari, declined to interfere with the Impugned Order of liquidation dated 4th February, 2019. However, it directed the Liquidator to act in accordance with a decision passed in a previous Company Appeal, emphasizing the need to follow the provisions of the Companies Act and the Insolvency & Bankruptcy Code for further actions.In conclusion, the appeal was disposed of with no costs, maintaining the liquidation order while providing guidance for the future actions of the Liquidator in line with the relevant legal provisions and previous judgments.