TaxTMI 
TaxTMI 
2020 (12) TMI 421
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.... it was challenged before this Appellate Tribunal and Appeal got dismissed. During the course of Liquidation Proceedings, the Appellant claims to have filed two schemes. One is Annexure -6 (Page 75) and other scheme is Annexure-7 (Page 106). Both are dated 25th September, 2019. The Learned Counsel for the Appellant submits that in both the schemes which are otherwise similar, in scheme at Annexure -6 the scheme was proposed with one M/s. Sri Ram Properties who had agreed to invest. The other scheme at Annexure -7 was proposed with M/s. Vijay Raja Homes Pvt. Ltd. The schemes were proposed under Section 230 of the Companies Act, 2013. 3. It is stated that the Respondent/Liquidator filed M.A./1322/2019 before the Adjudicating Authority (National Company Law Tribunal, Division Bench -I, Chennai seeking relief to condone delay of 35 days in filing Application for extension of a period of 90 days to follow the entire process under Section 230 of the Companies Act with regard to the Corporate Debtor. The delay was condoned. It appears that MA 1323 of 2019 was filed by the Liquidator under Section 35 (n) and Section 60 (5) of Insolvency and Bankruptcy Code, 2016 (IBC in short) read with....
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....he Applicant is interested in using the services of M/s. Sri Ram Properties in developing the Residential/Commercial Properties on the land of the Corporate Debtor. In the other scheme in place of M/s. Sri Ram Properties the other entity shown is M/s. Vijay Raja Homes Pvt. Ltd. (Page 109). It is argued by the Learned Counsel for the Appellant that the Adjudicating Authority proceeded on wrong premise as if the Appellant was making back-door entry, although hit by Section 29-A of IBC. The argument is that the Appellant who submitted these schemes to the Liquidator is merely a facilitator for the scheme being proposed and for execution of the same. For the sake of convenience, we refer to the averments made in Annexure-6. The Learned Counsel referred to Part-I of the scheme Paragraph 2 (Page 84) where it is recorded that the Applicant "shall not interfere in the current business or management status of the Corporate Debtor". The Learned Counsel also referred to Status Report which was filed by the Liquidator (Annexure -9 Page 146) at Page 151 where it was mentioned in Paragraphs 8 and 9 as under: "8. The Respondent in the proposed scheme is only facilitator of the developmen....
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....of Liquidation Proceedings. 8. Against this, the Learned Counsel for the Respondent has referred to the contents of the two schemes. The Learned Counsel referred to Annexure - 7 where in the preamble itself the Appellant is shown as Applicant. Even the scheme was tendered to the Liquidator by the Appellant under his signature as can be seen from the Letter submitted on 25th September, 2019 (Page 106). The Learned Counsel also took us to various contents of the scheme. For instance, Part-I (The Scheme of Settlement) - Paragraph 4 and referring to the same it is argued that the Appellant who is Applicant in the scheme stated that the Applicant wanted to sell the said project under RERA. Learned Counsel also referred to Part-III Division II at Page 124, to submit that it is the Applicant who would be taking all the possible/necessary steps to implement the project and mobilize the expected funds as mentioned, considering the volatility in the Real Estate. Reference was also made to Part-V of the scheme (Page 128) where rights, duties and responsibilities of the Applicant are specified. Learned Counsel reminded us that in Paragraph 1.11 of the scheme (Page 113) the Definition of "Ap....
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....submissions made by the Learned Counsel for Appellant that the Appellant was merely facilitator of the two schemes as stated. Having gone through the contents of the schemes, it is quite clear that the Appellant was to remain in command. We do not find it can be said that the Appellant is only a mere facilitator. The Schemes were of Appellant and were fully centered and linked with Appellant who was ineligible under Section 29-A of IBC. 12. Coming to the Certificate of MSME Annexure -10 there is no dispute regarding the fact that Liquidation Proceedings started on 11th December, 2018 and the schemes were submitted by the Appellant On 25th September, 2019 and the Application for obtaining Certificate of MSME was filed on 27th December, 2019. We find substance in the submissions of the Learned Sr. Counsel for the Liquidator that when Order of Liquidation is passed it would amount to discharge the officers/employees/workmen of the Corporate Debtor, except when and to the extent of the business of the Corporate Debtor to be continued during the Liquidation Process by the Liquidator. Apart from this once CIRP is initiated under IBC, the management vests in IRP/RP and if Liquidation O....