TaxTMI 
TaxTMI 
2019 (9) TMI 709
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....And Ms. M. Swati, Advocate; i/b. MDP & Partners (On behalf of IDBI Bank). ORDER A) MA No.1316/2019 1. This is an Application submitted by Resolution Professional Mr. Devendra Prasad on 05.04.2019 seeking an order u/s. 33(2) of the Insolvency Code for an Order of Liquidation in respect of the Corporate Debtor M/s. S. Kumars Nationwide Ltd. 2. A Petition was filed bearing No. CP (IB) 294/NCLT/MB/2018 u/s. 7 of the Insolvency Code by IDBI Bank as Financial Creditor, against S. Kumars Nationwide Ltd., a Corporate Debtor which was admitted by an Order dated 24.04.2018 in respect of a total Debt of Rs. 1680,69,35,210/-. Moratorium was declared and Interim Resolution Professional was appointed. Subsequently, the appointed Interim Resol....
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....mber of Committee of Creditors as well. As a consequence, on 8th Committee of Creditors meeting, Finquest, as a Resolution Applicant, was asked to cure the defects so as to discuss the viability of the Resolution Plan. 5. During 9th Committee of Creditors meeting certain queries were raised, for ready reference reproduced below:- "l. During the 9th COC meeting, upon a detailed study of the Resolution plan, the COC members raised several concerns regarding her viability of the Resolution plan. The commercial terms of the resolution plan were not acceptable to the COC members. It was also observed that the resolution plan was, in effect, placing Finquest (which is also a Financial Creditor of the Corporate Debtor) in an advantageo....
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....Fifty Crores Only) be retained as debt / as charge on the assets of the Corporate Debtor and the said amount be repaid to them in timeline of 1-3 years from the future cash flows of the Corporate Debtor. I. The amount to be paid to the financial creditors for funding Rs. 300-350 crores should not be in form of securities of Corporate Debtor viz. Optionally Convertible Debentures, Partially Convertible Debentures, Compulsorily Convertible Preference Shares or in any such other form." 6. On discussion among the Committee of Creditors members it was communicated to Finquest (Resolution Applicant) to provide an upfront payment of Rs. 350 Crores. It was also asked that in the Resolution application the balance Debt amount of Rs. 750 ....
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....date the proposal of the Fees of the Liquidator shall be decided. Later on it was informed that JLF had recommended the name of one Mr. Om Prakash Agarwal as Liquidator to the Corporate Debtor having Registration No. IBBI/IPA-001/IP-P00201/2017-18/10444. Through Resolution Professional it has also been communicated to the members of the Committee of Creditors that the Liquidator, if appointed, has agreed for a monthly fee of Rs. 4 Lakhs effective from the date of implementation of the Liquidation process. Annexed with this Application is a written consent of the proposed Liquidator. Also annexed minutes of several meetings of Committee of Creditors members, more particularly, minutes of 10th meeting of Committee of Creditors held on 13.03.2....
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....ions and in the light of the decision of the Committee of Creditors, as discussed in foregoing paragraphs, an Order u/s.33(2) ought to be passed by NCLT approving the commencement of 'Liquidation' as resolved by members of Committee of Creditors as well as by the members of Joint Lending Forum. This Section prescribes that where the Adjudicating Authority is informed about the rejection of the Resolution Plan u/s.31 of The Code, it shall pass an Order requiring the Corporate Debtor to be liquidated. Further, Sub-section (2) says that, anytime during the Insolvency Process if Resolution Professional intimates the Adjudicating Authority the decision of the Committee of Creditors to liquidate the Corporate Debtor, the Adjudicating Auth....
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....IBBI/IPA-001/IP-P00201/2017-2018/10444 be appointed as 'Liquidator'. In this regard an Affidavit of Mr. Devendra Prasad (Resolution Professional) dated 31.05.2019 is also submitted, wherein vehemently made an objection that the IDBI had failed to make out any case of opposing his appointment as "Liquidator". In this Affidavit, the efforts made by the said Resolution Professional are narrated and vehemently pleaded that the Committee of Creditors had never found any fault, delay or contravention in duties, hence without any reason took a decision to appoint another person as "Liquidator", instead of appointing the Applicant as "Liquidator". Certain reasons have been given by this Applicant to be appointed as Liquidator, such as: havi....