2021 (11) TMI 475 - Tri - Insolvency and Bankruptcy

Premature Cash Distribution Rejected, Focus on Asset Value Maximization

The application seeking distribution of cash balance among stakeholders was rejected by the Tribunal as premature since the Corporate Debtor was still ... Distribution of liquidation estate cash balances - order of priority under Section 53 - Regulation 42(1) and distribution prerequisites - maximisation of value of assets - prematurity of distribution during liquidationDistribution of liquidation estate cash balances - order of priority under Section 53 - Regulation 42(1) and distribution prerequisites - prematurity of distribution during liquidation - Whether the Tribunal should direct immediate distribution of the cash balance of the corporate debtor to stakeholders in liquidation. - HELD THAT: - The Tribunal examined the applicants' plea for distribution of the cash balances forming part of the liquidation estate and noted the applicants' willingness to have distribution made in accordance with the order of priority set out in Section 53 and to account for CIRP and estimated liquidation costs. The Liquidator indicated availability of funds and expressed conditional consent subject to an undertaking to replenish any shortfall. Notwithstanding these representations, the Bench concluded that the company remains operational in part and that permitting immediate distribution at this stage would derogate from the value of the company and undermine the objective of maximisation of asset value during the liquidation process. The Tribunal considered the regulatory requirement that distribution follow the filing of the stakeholders list and asset memorandum (Regulation 42(1)) and the scheme of Section 53 governing distribution, but held that distribution prior to completion of liquidation and without the liquidation process being substantially advanced would be premature. Consequently the application for immediate distribution was rejected. The Tribunal further directed administrative steps to progress liquidation, including submission of a progress report and a revised list of stakeholders, and ordered that distribution be commenced only after completion steps are taken so that distribution can occur in one go. [Paras 20]Application for immediate distribution rejected as premature; liquidator directed to submit progress report and revised stakeholders list and to complete liquidation steps before commencing distribution in one go.Final Conclusion: The application seeking direction for immediate distribution of the corporate debtor's cash balance is dismissed as premature; the liquidator is directed to file a progress report and revised stakeholders list and to proceed to complete the liquidation in a time bound manner before initiating distribution. Issues Involved:1. Distribution of Cash Balance2. Implementation of Approved Resolution Plan3. Liquidation Process and Compliance with Section 53 of the Insolvency and Bankruptcy Code, 2016 (I&B Code)4. Objections and Undertakings by Financial Creditors5. Applicability of Previous NCLT OrdersIssue-wise Detailed Analysis:1. Distribution of Cash Balance:The Applicant, IDBI Bank Limited, sought the distribution of INR 223 crore from the cash balance of EPC Constructions India Limited (Corporate Debtor) among its financial creditors. The Applicant argued that the cash balance forms part of the 'liquidation estate' under Section 36(3)(c) and (i) of the Insolvency and Bankruptcy Code, 2016 (I&B Code). The Applicant submitted that the distribution should follow the order of priority set out in Section 53 of the Code, which includes insolvency resolution process costs, liquidation costs, and workmen’s dues.2. Implementation of Approved Resolution Plan:The approved Resolution Plan required an upfront payment of INR 420 crores by the Resolution Applicant, Royale Partners Investment Fund Limited, to the financial creditors. However, the Resolution Applicant failed to implement the plan within the prescribed period. Consequently, the Tribunal directed the liquidation of the Corporate Debtor effective from 18th May 2021. The Applicant then modified its prayers to request the distribution of available cash balances among stakeholders as per Section 53 of the Code.3. Liquidation Process and Compliance with Section 53 of the I&B Code:The Liquidator, in his reply, stated no objection to distributing up to INR 220 crores among stakeholders per the order of priority specified under Section 53 of the I&B Code. However, the Liquidator sought an undertaking from financial creditors to replenish any shortfall in meeting liquidation process requirements within 15 days of demand. The Liquidator estimated the liquidation process costs to not exceed INR 80 crores and noted that the Corporate Debtor generates approximately INR 6-7 crores in cash monthly.4. Objections and Undertakings by Financial Creditors:The Applicant, representing all financial creditors, volunteered to distribute the cash balance in the priority set out in Section 53 of the Code. The Applicant undertook to replenish any deficit amount within fifteen days from the demand by the Liquidator. The financial creditors communicated their willingness to this condition during the hearing.5. Applicability of Previous NCLT Orders:The Applicant argued that the NCLT Kolkata Bench's order in Varsana Employee Welfare Association vs. Anil Goel was not applicable to the present case. The Applicant distinguished the facts of the previous order, noting that workmen's dues were not accounted for, and an application for compromise and arrangement was pending in that case. The Applicant believed that the necessary requirements for distribution under Regulation 42 of the IBBI (Liquidation Process) Regulations, 2016, had been fulfilled.Findings:The Tribunal found the application premature, noting that the Corporate Debtor was still operational. Distributing the cash balance would derogate the company's value and hinder the maximization of asset value. The Tribunal directed the Liquidator to submit a progress report and a revised list of stakeholders and to complete the liquidation process in a time-bound manner before starting distribution.Conclusion:The application was rejected, and the Liquidator was directed to proceed with the liquidation process efficiently. The Tribunal emphasized the need to maximize the value of the Corporate Debtor's assets before any distribution of the cash balance. The present IA No. 977 of 2021 in C.P (IB) No. 1832/MB/C-II/2017 was disposed of accordingly.