TaxTMI 
TaxTMI 
2021 (8) TMI 623
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....the M/s. Hindustan Aqua Private Limited, it is prayed that the Adjudicating Authority be pleased to give directions to the RP to call for meeting of Committee of Creditors for this purpose and allow 60 days' time to the RP/COC for necessary proceedings. c. Alternatively, the Adjudicating Authority may exclude the litigation period from 16.05.2019 in view of proviso 12(3) of I & B Code (Amended act) 2019 dated 06.08.2019 for 60 days so that Committee of Creditors may take appropriate decision in the matter and conclude the CIRP under the proviso. d. and pass such other as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case. 2. The brief facts, as averred by the applicant, leading to filing of the instant application are as follows: i. That the CIRP was initiated against the Corporate Debtor vide order dt. 25.07.2018 and the applicant herein was appointed as the Interim Resolution Professional. Subsequently, the Applicant was confirmed as the Resolution Professional ("RP"). The initial 180 days period of CIRP expired on 20.01.2019, which was extended by a further period of 90 days up to 20.04.2019 vide....
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....igibility under section 29A issued by RP to the Promoters along with copy of report for clarification reply/submission however no reply/clarification received in the matter. 17. 20th April, 2019 COC with majority vote of 72.88% approved the refection of the Resolution Applicant/Promoters under 9A disability in its 12th meeting, decision of the COC shared with the Promoter cum Resolution Applicant. 18. 26th April, 2019 On Approval of COC, a fresh Form G published by extending the last date of EOI to 26th April, 2019. One EOI received thereafter however no Resolution Plan received till last date of receipt of Resolution Plan or date of expiry of CIRP. 19. 16th May, 2019 I.A. 607/2019 filed by Suspended Board of Directors cum RA for declaring their eligibility under section 29A against the decision of the Committee of Creditors. 20. 27th May, 2019 14th meeting of the COC without passing any resolution of liquidation and but majority decision as "Lot Hon'ble Tribunal to decide the liquidation proceedings in accordance with section 33(1)(o) of the code." 21. 31st May, 2019 Last d....
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....hallenged by the said applicant, which is currently pending adjudication before this Tribunal in C.A. No. 607/2019 dated 16.05.2019. iv. That in the meantime, upon expiry of the CIRP period and in view of the no decision taken by the CoC, the application of liquidation bearing C.A. No. 731/2019 was filed by the applicant/RP before this authority, which was partially allowed vide order dt. 14.06.2019. The relevant extract of the said order is reproduced below: v. "CA 731/2019 has been filed praying for directions to proceed towards liquidation. vi. Given the facts and circumstances, this application is allowed. vii. The assets of the Corporate Debtor be put for liquidation as no resolution plan has been received and 270 days are also over. Ld. RP has proposed his own name as the liquidator in this case as no decision has been taken by the COC in this respect. The same shall be taken up for consideration on the next date of hearing. viii. To come up on 4th July, 2019." ix. That, however, vide order dt. 04.07.2019, the said liquidation process was kept in abeyance and it was directed as under: x. "CA 827/2019 has been file....
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....eriod of another 90 days from the date of such amended act. That prior to filing of Liquidation Application, no such provision of 90 days period in concluding CIRP was available to the Applicant. It became available to the Applicant only after enactment dated 06.08.2019 and from that date the Corporate Debtor has been facing litigation. Neither the CIRP is concluded nor the Liquidation process is initiated. xvi. That in view of the judgment of the Hon'ble Supreme Court in the matter of Committee of Creditors of Essar Steel v. Satish Kumar Gupta, para 108. In this case, the Court held that the timelines prescribed by Section 12 are not mandatory. xvii. That in Committee of Creditors of Essar Steel (para. 108), the Supreme Court also held that this Tribunal had the power to extend the CIRP period if certain specific conditions were satisfied on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its fe....
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....eting dated 27.05.2019, the CoC passed a resolution "Let Hon'ble Tribunal to decide the liquidation proceedings in accordance with Section 33(1)(a) of the Code." And accordingly, the RP has filed an application bearing CA No. 731/2019 under Section 33 of the IBC, 2016, on expiry of the period of CIRP. This Adjudicating Authority vide order dated 14.06.2019 passed the following order (at page 23 and 24 of the Application):- 12. We further notice that another CA No. 827/2019 was listed for hearing on 04.07.2019 and in the course of hearing of that matter, a reference was made in respect of the pendency of CA No. 731/2019 and in that proceeding, the Bench has passed the following order: "........Keeping in view the facts and circumstances of the case, the applicant has some merit in his submission. It would be in the interest of justice to ensure that the pending application is first disposed off and then liquidation be directed........" 13. On the basis of that order, the applicant has prayed that the liquidation order has not been passed and the application is still pending for liquidation. 14. At this juncture, we would like to refer the provisions contained u....
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....btor has contravened the provisions of the resolution plan, it shall pass a liquidation order as referred to in sub-clauses (i), (ii) and (Hi) of clause (b) of sub-section (1). (5) Subject to section 52, when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor: Provided that a suit or other legal proceeding may be instituted by the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority. (6) The provisions of sub-section (5) 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. (7) The order for liquidation under this section 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. Section 34. Appointment of liquidator and fee to be paid. (1) Where the Adjudicating Authority passes an order for liquidation of the corporate debtor under sect....
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....vency professional proposed to be appointed as a liquidator shall charge such fee for the conduct of the liquidation proceedings and in such proportion to the value of the liquidation estate assets, as may be specified by the Board. (9) The fees for the conduct of the liquidation proceedings under sub-section (8) shall be paid to the liquidator from the proceeds of the liquidation estate under section 53. 15. When we consider both the provisions together, it is seen that under Section 33 of the IBC, an Adjudicating Authority is vested with the power to pass the liquidation order. Whereas under Section 34 of the IBC, 2016, the Adjudicating Authority is empowered to appoint the Liquidator. 16. In the light of the aforesaid provisions, when we peruse the order passed by this Adjudicating Authority on 14.06.2019, we find that the application filed by the Resolution Professional for liquidation under Section 33 of the IBC, 2016 has already been allowed. Vide that Order, this Adjudicating Authority held that "The assets of the Corporate Debtor be put for liquidation as no resolution plan has been received and 270 days are also over." The matter is pending only for appointm....
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.... 22. It is also the admitted position of law that there is no power for review of order under the IBC and once the liquidation order is passed by this Adjudicating Authority on 14.06.2019, there is no scope to recall. The subsequent order dated 04.07.2019 cannot be read as an order of recall of the order of liquidation, rather it can be treated as an order which deferred the matter that was for consideration i.e., confirmation of the liquidator under Section 34(4) of the IBC, 2016 only. 23. Hence, we find no force in the contention of the Applicant and no reason to give any direction to the applicant or the COC in respect of the Expression of Interest/Resolution Plan of Resolution Applicant M/s. Hindustan Aqua Private Limited received by the Resolution Professional. Therefore, the prayer of the Applicant is hereby rejected. 24. Accordingly, the present application i.e. IA/2034/2021 stands Dismissed. ============= Document 1 COARM: ANNEXURE A-1 NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH 23 PRESENT: DR. V.K. SUBBURAJ HON'BLE MEMBER(T) (IB)-702/ND/2018 MS. INA MALHOTRA HON'BLE MEMBER (J) ATTENDANCE-CUM-ORDER SHEET OF THE HEARING BEFORE NEW....