TaxTMI 
TaxTMI 
2020 (8) TMI 490
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.... short 'MSME'), the Appellant made efforts and has offered the Respondent- Oriental Bank of Commerce Rs. 8.5 Crores to settle the dues of the Corporate Debtor but in spite of receiving 5% of the amount to show bonafide, later on Respondent No. 1, without assigning any reason, simply rejected One Time Settlement ("in short 'OTS') proposal. A copy of the said letter dated 03.02.2020 is tendered at Bar. The said letter is marked as 'X' for identification. 3. Learned Counsel for the Appellant as well as Respondent No. 1 and learned Counsel for Respondent No. 3-Liquidator accept that the dues of Oriental Bank of Commerce are to the extent of 99.4% and rest are the dues of others. 4. Learned Counsel for the Respondent No. 1 submits that dues of the Bank are about Rs. 16 Crores and the Bank is not accepting the OTS proposal because the Bank has hope from the Securities available to recover the dues. 5. Having heard learned Counsel for both the sides, we find that interference in Impugned Order is not called for but the Appeal deserves to be disposed of with directions as were given in the matter of "Y. Shivram Prasad Vs. S. Dhanapal & Ors." in Company Appeal(AT)(Insolvency) No. 224 of ....
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....skills, resuscitate the corporate debtor to achieve all these ends." In 'Arcelormittal India Pvt. Ltd. vs. Satish Kumar Gupta & Ors.' at paragraph 83, footnote 3 is mentioned. The Hon'ble Supreme Court noticed that: "3. Regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, states that the liquidator may also sell the corporate debtor as a going concern." 6. In 'Meghal Homes Pvt. Ltd. vs. Shree Niwas Girni K.K. Samiti & Ors. - (2007) 7 SCC 753" the Hon'ble Supreme Court observed and held as follows: "33. The argument that Section 391 would not apply to a company which has already been ordered to be wound up, cannot be accepted in view of the language of Section 391(1) of the Act, which speaks of a company which is being wound up. If we substitute the definition in Section 390(a) of the Act, this would mean a company liable to be wound up and which is being wound up. It also does not appear to be necessary to restrict the scope of that provision considering the purpose for which it is enacted, namely, the revival of a company including a company that is liable to be wound up or is being wound up and normally, the attempt mu....
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.... not less than seventy-five per cent. of the secured creditors in value, including- (i) a creditor's responsibility statement in the prescribed form; (ii) safeguards for the protection of other secured and unsecured creditors; (iii) report by the auditor that the fund requirements of the company after the corporate debt restructuring as approved shall conform to the liquidity test based upon the estimates provided to them by the Board; (iv) where the company proposes to adopt the corporate debt restructuring guidelines specified by the Reserve Bank of India, a statement to that effect; and (v) a valuation report in respect of the shares and the property and all assets, tangible and intangible, movable and immovable, of the company by a registered valuer. (3) Where a meeting is proposed to be called in pursuance of an order of the Tribunal under subsection (1), a notice of such meeting shall be sent to all the creditors or class of creditors and to all the members or class of members and the debentureholders of the company, individually at the address registered with the company which shall be accompanied by a statement disclosing the details of the compromise or a....
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....umed that they have no representations to make on the proposals. (6) Where, at a meeting held in pursuance of subsection (1), majority of persons representing threefourths in value of the creditors, or class of creditors or members or class of members, as the case may be, voting in person or by proxy or by postal ballot, agree to any compromise or arrangement and if such compromise or arrangement is sanctioned by the Tribunal by an order, the same shall be binding on the company, all the creditors, or class of creditors or members or class of members, as the case may be, or, in case of a company being wound up, on the liquidator appointed under this Act or under the Insolvency and Bankruptcy Code, 2016, as the case may be, and the contributories of the company. (7) An order made by the Tribunal under subsection (6) shall provide for all or any of the following matters, namely:- (a) where the compromise or arrangement provides for conversion of preference shares into equity shares, such preference shareholders shall be given an option to either obtain arrears of dividend in cash or accept equity shares equal to the value of the dividend payable; (b) the protection of any....
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....on 230 and the decision of the Hon'ble Supreme Court in 'Meghal Homes Pvt. Ltd.' and 'Swiss Ribbons Pvt. Ltd.', we direct the 'Liquidator' to proceed in accordance with law. He will verify claims of all the creditors; take into custody and control of all the assets, property, effects and actionable claims of the 'corporate debtor', carry on the business of the 'corporate debtor' for its beneficial liquidation etc. as prescribed under Section 35 of the I&B Code. The Liquidator will access information under Section 33 and will consolidate the claim under Section 38 and after verification of claim in terms of Section 39 will either admit or reject the claim, as required under Section 40. Before taking steps to sell the assets of the 'corporate debtor(s)' (companies herein), the Liquidator will take steps in terms of Section 230 of the Companies Act, 2013. The Adjudicating Authority, if so required, will pass appropriate order. Only on failure of revival, the Adjudicating Authority and the Liquidator will first proceed with the sale of company's assets wholly and thereafter, if not possible to sell the company in part and in accordance with law." 13. Therefore, it is clear that duri....