AI Drafter 
TaxTMI 
TaxTMI 
2019 (11) TMI 1642
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....ion 22 of the Code, vide order dated 29.03.2019 passed by this Tribunal, Mr. Mahesh Bansal, Interim Resolution Professional, was substituted with Mr. Mahesh Chandra Purohit and the latter was appointed as Resolution Professional. 3. It is stated that invitation for expression of interest (Form G) was issued for the first time on 19.04.2019, Annexure 3, the same was published in two newspapers 20.04.2019 and the last date for submission of the resolution plan was fixed on 19.06.2019. It is further stated that one expression of interest was received from prospective resolution applicant and information memorandum along with request for resolution plan and evaluation matrix was shared with the prospective resolution applicant on 19.05.2019, however, no resolution plan was received within the stipulated period. 4. It is stated that as the period of 180 days was expiring on 20.07.2019, the COC in its 4th Meeting held on 10.07.2019, decided to make one more attempt of resolution by inviting EOI again with suitable revision in eligibility criteria and evaluation matrix and considering the limited period available, decided for extension of CIRP period for further 90 days and in....
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...., the Adjudicating Authority shall pass a liquidation order as referred to in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1). 1 [Explanation - For the purpose of this sub-section, it is hereby declared that the committee of creditors may take the decision to liquidate the corporate debtor, any time after its constitution under sub-section (1) of section 21 and before the confirmation of the resolution plan, including at any time before the preparation of the information memorandum.] (3) Where the resolution plan approved by the Adjudicating Authority is contravened by the concerned corporate debtor, any person other than the corporate debtor, whose interests are prejudicially affected by such contravention, may make an application to the Adjudicating Authority for a liquidation order as referred to in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1). (4) On receipt of an application under sub-section (3), if the Adjudicating Authority determines that the corporate debtor has contravened the provisions of the resolution plan, it shall pass a liquidation order as referred to in subclauses (i), (ii) and (iii) of clause (b) o....
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....9 shall apply in relation to voluntary liquidation process as they apply in relation to liquidation process with the substitution of references to the liquidator for references to the interim resolution professional. (4) The Adjudicating Authority shall by order replace the resolution professional, if- (a) the resolution plan submitted by the resolution professional under section 30 was rejected for failure to meet the requirements mentioned in sub-section (2) of section 30; or (b) the Board recommends the replacement of a resolution professional to the Adjudicating Authority for reasons to be recorded 1 [in writing; or] [(c) the resolution professional fails to submit written consent under subsection (1).] (5) For the purposes of 3 [clause (a) and clause (c)] of sub-section (4), the Adjudicating Authority may direct the Board to propose name of another insolvency professional to be appointed as a liquidator. (6) The Board shall propose the name of another insolvency professional [along with written consent from the insolvency professional in the specified form] within ten days of the direction issued by the Adjudicating Authority under sub-section (5). ....
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....to be appointed as Liquidator. 16. The Law Research Associate of this Tribunal has checked the credentials of Mr. Harvinder Kumar Jatana and there is nothing adverse against him. In view of the above, we appoint Mr. Harvinder Kumar Jatana, Registration No. IBBI/IPA-002/IP-N00418/2017-2018/11193, Mobile No. 9814583727, Email: [email protected], as the Liquidator. 17. Regulations 39B, 39C and 39D in the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulation 2016) have been inserted by Notification No.IBBI/2019- 20/GN/REG/048 dated 25.07.2019. These regulations are as follows:- "39B. Meeting liquidation cost. (1) While approving a resolution plan under sub-section (4) of section 30 or deciding to liquidate the corporate debtor under subsection (2) of section 33, the committee may make a best estimate of the amount required to meet liquidation costs, in consultation with the resolution professional, in the event an order for liquidation is passed under section 33. (2) The committee shall make a best estimate of the value of the liquid assets available to meet the liquidation c....
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....ct, 2013; (b) the period, if any, used for sale under clauses (e) and (f) of regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016; and (c) the balance period of liquidation." 18. It is submitted that compliance of these regulations was made by the Committee of Creditors in the 6th Meeting held on 15.10.2019. It was thereby pleaded that the requirements of Regulation 39B, 39C and 39D of the CIRP Regulations 2016 are satisfied in the present case. In view of the insertion of Regulations 39B, 39C and 39D, the corresponding modifications have been also made in Form H, under Paragraph Nos. 15A to 15C, which read as under:- "15A. The committee has approved a plan providing for contribution under regulation 39B as under: a. Estimated liquidation cost: Rs............... b. Estimated liquid assets available: Rs............... c. Contributions required to be made: Rs............... d. Financial creditor wise contribution is as under: Sl. No. Name of financial creditor Amount to be contributed (Rs.) 1 2 .. Tota....
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....ty under section 33 of IBC, 2016 pursuant to filing of liquidation application by RP to AA. The COC, however, could not estimate the liquidation cost and the difference between liquidation cost and liquid assets and therefore the COC could not suggest/approve any plan for meeting the difference between the two. Item No.10: To discuss and approve the assessment of sale as a going concern as per Regulation 39C of CIRP Regulations The chairman informed the members of COC that as per Regulation 39C of CIRP Regulations 1) While approving a resolution plan under Section 30 or deciding to liquidate the corporate debtor under section 33, the committee may recommend that the liquidator may first explore sale of the corporate debtor as a going concern under clause (e) of regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 or sale of the business of the corporate debtor as a going concern under clause (f) thereof, if an order for liquidation is passed under Section 33. 2) Where the committee recommends sale as a going concern, it shall identify and group the assets and liabilities, which according t....
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....or under regulation 4; (ii) remuneration payable by the liquidator under sub-regulation (1) of regulation 7; (iii) costs incurred by the liquidator under sub-regulation (2) of regulation 24; (iv) costs incurred by the liquidator for preserving and protecting the assets, properties, effects and actionable claims, including secured assets, of the corporate debtor; (v) costs incurred by the liquidator in carrying on the business of the corporate debtor as a going concern; (vi) interest on interim finance for a period of twelve months or for the period from the liquidation commencement date till repayment of interim finance, whichever is lower; (vii) the amount repayable to contributories under sub-regulation (3) of regulation 2A; (viii) any other cost incurred by the liquidator which is essential for completing the liquidation process: Provided that the cost, if any, incurred by the liquidator in relation to compromise or arrangement under section 230 of the Companies Act, 2013 (18 of 2013), if any, shall not form part of liquidation cost.] Regulation 2A [2A. Contributions to liquidation costs. ....
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....er sub-section (6) of section 230: Provided that such cost shall be borne by the parties who proposed compromise or arrangement, where such compromise or arrangement is not sanctioned by the Tribunal under sub-section (6) of section 230.] Regulation 4 [Liquidator's fee. (1) The fee payable to the liquidator shall be in accordance with the decision taken by the committee of creditors under regulation 39D of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (2) In cases other than those covered under sub-regulation (1), the liquidator shall be entitled to a fee- (a) at the same rate as the resolution professional was entitled to during the corporate insolvency resolution process, for the period of compromise or arrangement under section 230 of the Companies Act, 2013 (18 of 2013); and (b) as a percentage of the amount realised net of other liquidation costs, and of the amount distributed, for the balance period of liquidation, as under: Amount of Realisation /Distribution (In rupees) Percentage of fee on the amount realised/distributed in the fir....
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....ion 33 of the Code shall not apply to legal proceedings in relation to such transactions as may be notified by the Central Government in consultation with any financial sector regulator; iii.) That this order of liquidation under Section 33 of the Code shall be deemed to be a notice of discharge to the officers, employees and workmen of the Corporate Debtor, except when the business of the Corporate Debtor is continued during the liquidation process by the Liquidator; iv.) That all the powers of the Board of Directors, key managerial personnel and the partners of the Corporate Debtor, as the case may be, shall cease to have effect and shall be vested in the Liquidator; and v.) That the personnel of the Corporate Debtor shall extend all assistance and cooperation to the Liquidator as may be required by him in managing the affairs of the corporate debtor and provisions of Section 19 of the Code shall apply in relation to voluntary liquidation process as they apply in relation to liquidation process with the substitution of references to the Liquidator for references to the Interim Resolution Professional. 24. The Liquidator shall publish public announcem....