TaxTMI 
TaxTMI 
2019 (12) TMI 563
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....d the claims; constituted the 'Committee of Creditors'; prepared the 'Information Memorandum'; called for 'Resolution Plan' with the approval of the 'Committee of Creditors' and 'Resolution Plans' were placed before the 'Committee of Creditors'. The 'Resolution Plan' submitted by one of the 'Resolution Applicant' was approved by the 'Committee of Creditors' in its 7th meeting with voting share of 83.02%. The 'Resolution Professional' filed Miscellaneous Application No. 524 of 2018 before the Adjudicating Authority for approval of the 'Resolution Plan' under Section 31 of the I&B Code. 3. The Adjudicating Authority (National Company Law Tribunal), Mumbai Bench heard the parties and noticed the submissions made on behalf of the IDBI Bank Limited that Hon'ble High Court of Bombay has already passed order of 'Liquidation' of the Company. The Counsel for the IDBI Bank also brought to the notice of the Adjudicating Authority the order of the Hon'ble Bombay High Court dated 25th January, 2017 passed in Company Petition No.7/2015, wherein the Hon'ble Bombay High Court observed and....
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....t in the abovementioned case, it is clear that after liquidation order passed in a winding-up petition against the corporate debtor then it is barred from filing a petition under section 10 of the Code. Here the corporate debtor has not only suppressed the material fact that the winding up petition has not only been filed and admitted, but liquidation order has also been passed against the corporate applicant/corporate debtor liquidator has been directed to expedite liquidation proceedings expeditiously. The corporate applicant suppressed this material fact, knowing it to be material, and filed the petition under section 10 and in contravention of Rule 10 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The alleged Act of the corporate applicant is punishable under section 77(a) of the Insolvency and Bankruptcy Code, 2016. The Registrar of Companies, Mumbai is directed to lodge prosecution against the corporate applicant under section 77(a) of the Insolvency and Bankruptcy Code in 2016. 36. Since the petition has been filed under section 10 of the Insolvency and Bankruptcy Code, 2016 after the suppression of the material facts, which were k....
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....ny were asked to report the Hon'ble Bombay High Court on 27th November, 2014 setting out the progress before the BIFR. In the aforesaid petition, the Hon'ble Bombay High Court, passed order for 'Liquidation' and the 'Provisional Liquidator' was appointed on 31st July, 2013, as quoted below:- "IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 289 OF 2013 Jamnadas Mathuradas ... Petitioner Versus Amar Remedies Ltd. ... Respondent WITH COMPANY PETITION NO. 517 OF 2012 Enterprise International Ltd. ... Petitioner Versus Amar Remedies Ltd. ... Respondent WITH COMPANY PETITION NO.26 OF 2013 IDBI Bank Ltd. ... Petitioner Versus Amar Remedies Ltd. ... Respondent WITH COMPANY PETITION NO.166 OF 2013 Bhoruka Part Pvt. Ltd. ... Petitioner Versus Amar Remedies Ltd. ... Respondent WITH COMPANY PETITION NO.187 OF 2013 L & T Finance Ltd. ... Petitioner Versus Amar Remedies Ltd. ... Respondent WITH COMPANY PETITION NO.199 OF 2013 Prem Hemandas Rupani ... Petitioner Versus Amar Remedies Ltd. ... Respondent WITH COMPANY PETITION NO. 264 OF 2013 ....
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.... CORAM: S.J. KATHAWALLA, J. DATE: 13TH OCTOBER, 2014 RC.: 1. Stand over to 27.11.2014 2. Copies of the Reference shall be served on the office of the Official Liquidator as well as Advocates for the Petitioners. The Petitioners shall be entitled to appear before BIFR and make necessary representations if they so desire. The Ex-directors of the Company shall file their Affidavit before this Court on 27.11.2014 setting out the progress before the BIFR. (S.J. KATHAWALLA, J.)" 9. The aforesaid order shows that the Petitioner(s) were allowed to move before the BIFR. 10. Earlier, order of winding-up was passed by the Hon'ble Bombay High Court on 27th August, 2014. On 19th September, 2014, the matter was taken up by the BIFR under Section 15(1) of Sick Industrial Companies Act, 1985 (hereinafter referred to as the 'SICA, 1985'). According to the learned Counsel for the Appellant, in terms of Section 22 of the SICA, 1985, all proceeding remained stayed. However, the BIFR having refused to pass any order of restructuring, the Company moved before the Appellate Authority for Industrial & Financial Reconstruction....
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.... AMENDMENT TO THE SICK INDUSTRIAL COMPANIES (SPECIAL PROVISIONS) REPEAL ACT, 2003 (1 OF 2004) In section 4, for sub-clause (b), the following sub-clause shall be substituted, namely:- (b) On such date as may be notified by the Central Government in this behalf, any appeal preferred to the Appellate Authority or any reference made or inquiry pending to or before the Board or any proceeding of whatever nature pending before the Appellate Authority or the Board under the Sick Industrial Companies (Special Provisions) Act, 1985 shall stand abated: Provided that a company in respect of which such appeal of reference or inquiry stands abated under this clause may make reference to the National Company Law Tribunal under the Insolvency and Bankruptcy Code, 2016 within one hundred and eighty days from the commencement of the Insolvency and Bankruptcy Code, 2016 in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016: Provided further that no fees shall be payable for making such reference under Insolvency and Bankruptcy Code, 2016 by a company whose appeal or reference or inquiry stands abated under this clause." 13. As the App....
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....nt) Block No.3, Second Floor, Sane Guruji Premises, 386, S.V. Savarkar Marg, Opp. Sidhivinayak Temple, Prabhadevi Mumbai 400 025 Maharashtra In the matter of AMAR REMEDIES LIMITED Subject: Application to initiate Corporate Insolvency Resolution Process in respect of AMAR REMEDIES LIMITED (ARL) under the Insolvency and Bankruptcy Code, 2016 (IBC) Madam/Sir, We, hereby submit this application to initiate a Corporate Insolvency Resolution Process in respect of AMAR REMEDIES LIMITED. The details for the purpose of this application are set out below: ** ** ** I, certify that, to the best of my knowledge, Ms. Jayashree Shukla Dasgupta is fully qualified and permitted to act as an Insolvency Professional in accordance with the provisions of Insolvency and Bankruptcy Code, 2016 and the associated rules and regulations. [The relevant fee is not being paid as the Company is filing this application pursuant to the notification of the SICA Repeal Act, 2003. As per Section 4(b) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 as amended by Section 252 read with Sc....
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.... Resolution Process' under sub-section (b) of Section 4 of the SIC Repeal Act, 2003, as noticed and quoted above. 19. In view of Section 252 of the I&B Code read with Schedule Eighth annexed thereto; and substituted sub-section (b) of Section 4, particularly proviso thereto of SIC Repeal Act, 2003 is a part of the Code. In terms of the proviso to Section 4(b) of SIC Repeal Act, 2003, as the Appeal before the AAIFR stood abated, the Company had a right to file reference for initiation of 'Corporate Insolvency Resolution Process' against it under the I&B Code. 20. Section 11 of the I&B Code deals with persons, who are ineligible to make application with the I&B Code. Clause (d) of Section 11 of the I&B Code prohibits the corporate debtor to prefer any application under Chapter II of Part II to initiate 'Corporate Insolvency Resolution Process' against itself in case liquidation order has been made, as quoted below: - "11. Persons not entitled to make application.-The following persons shall not be entitled to make an application to initiate corporate insolvency resolution process under this Chapter, namely:-- (a) a corporate debtor undergoi....
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....ief to the Company in respect of which appeal or reference or inquiry stands abated, to make reference under sub-section (b) of Section 4 to Adjudicating Authority (National Company Law Tribunal) under I&B Code for initiation of 'Corporate Insolvency Resolution Process'. There is no specific Form prescribed for such reference under "The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016" like Form 1, 5 or 6 for filing application under Section 7, Section 9 and Section 10. In fact, no Form has been prescribed even for initiation of 'Fast Track Corporate Insolvency Resolution Process' under Sections 55 and 56 of the I&B Code, in the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. In such circumstances, if the 'Corporate Debtor' for reference under sub-section (b) of Section 4 of SIC Repeal Act, 2003 if files application in a modified Form-6, it cannot be treated as a proceeding under Section 10. It should be treated as a 'Corporate Insolvency Resolution Process' by reference under sub-section (b) of Section 4 of SIC Repeal Act, 2003. In absence of prescribed Form, we hold that it was open to the....
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....petition. 31. Insofar it relates to initiation of proceeding under Section 77(a) of I&B Code, we hold that the Adjudicating Authority before referring the matter was required to record its prima facie opinion after giving opportunity of hearing to the Appellant. Such procedure is required to be followed before referring any matter to the Registrar of Companies/Insolvency and Bankruptcy Board of India or the Central Government for punishment under Chapter VII of the I&B Code. 32. From the impugned order dated 29th January, 2019, it will also be evident that the Adjudicating Authority has not impleaded the appellant-Pratima P. Shah as party Respondent, nor formed any prima facie opinion, nor issued any notice to her before passing the impugned order. Without any notice of hearing to the appellant-Pratima P. Shah, Director, the direction was issued to initiate proceeding under Section 77(a) of the I&B Code, 2016 in violation of rules of 'natural justice'. 33. The 'Corporate Insolvency Resolution Process' was initiated more than a year back by a separate Bench of the Adjudicating Authority (National Company Law Tribunal) on 16th June, 2017. Subsequently, at the....