2018 (8) TMI 1033 - Tri - Insolvency and Bankruptcy

Key issues in CoC resolution for Corporate Debtor liquidation post CIR process expiry

SBJ Exports & Mfg. Pvt. Ltd. Versus BCC Fuba India Limited

SBJ Exports & Mfg. Pvt. Ltd. Versus BCC Fuba India Limited - TMI Issues:1. Liquidation resolution adopted by CoC for Corporate Debtor2. Approval of liquidation subject to Competent Authority3. Behavior of CoC members affecting time-bound CIR process4. Lack of authorization for seeking extension of CIR process period5. Failure to exercise vote sharing within 180 daysAnalysis:1. The judgment discusses the adoption of a resolution for the liquidation of the Corporate Debtor by the Committee of Creditors (CoC) during their last meeting. Both Financial Creditors, Axis Bank and Oriental Bank of Commerce, expressed their opinion in favor of liquidation, subject to approval by the Competent Authority. However, the resolution was adopted after the expiry of the 180-day period for the Corporate Insolvency Resolution (CIR) process, creating an issue regarding the timeliness of the decision-making process.2. The judgment highlights a concerning trend where CoC members, often nominated by Financial Creditors like Banks, lack the authority to make immediate decisions during meetings. This lack of decision-making authority hampers the time-bound nature of the insolvency process as envisioned by the Insolvency and Bankruptcy Code, 2016. The judgment references a previous case where the Supreme Court emphasized the importance of speed in insolvency proceedings, criticizing delays caused by such procedural hurdles.3. It is noted that in the present case, there was no explicit authorization granted to the Resolution Professional by the CoC to seek an extension of the CIR process period beyond 180 days. Additionally, the required vote sharing by the Financial Creditors was not completed within the stipulated timeframe. These shortcomings in the decision-making process and procedural compliance further complicated the resolution of the insolvency case and raised concerns about the effectiveness of the CoC's functioning.4. As a result of the above observations, the judgment directs the Resolution Professional to communicate the order to the CoC for necessary action. Furthermore, a copy of the order is to be forwarded to the Insolvency and Bankruptcy Board of India for potential actions regarding the conduct of CoC members in this specific case and their general conduct in insolvency matters. The case is listed for further consideration on a specified date to address the issues raised and ensure appropriate steps are taken to rectify the procedural deficiencies identified in the judgment.