TaxTMI 
TaxTMI 
2021 (11) TMI 906
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.... Backwater Resorts Private Limited seeking the following reliefs: - i. Pass an order of Liquidation of the Corporate Debtor in terms of Section 33(3) and 33(4) of the Insolvency and Bankruptcy Code, 2016 and other applicable provisions of law in this regard, as per the directions of the NCLAT vide its Order dated 21.09.2021; ii. Appoint the Applicant herein as the Liquidator of the Corporate Debtor in terms of Section 33 and 34(1) of the Code for the purpose of Liquidation of the Corporate Debtor; iii. Any other Orders as the Bench may consider just and appropriate in the facts and circumstances of the case. The brief facts leading to this IA are as under: 2. The Assets Reconstruction Company (India) Limited filed an application under Section 7 of the IBC before the NCLT, Chennai Bench where the same was numbered as C.P. (1B) 1312 of 2018. After the constitution of the NCLT, Kochi Bench, the said case was transferred to this Bench and renumbered as TIBA/9/KOB/2019. This Bench admitted the application by order dated 20.09.2019 and appointed Mr. R. Velu, as the Interim Resolution Professional. CIRP commenced thereafter and IRP was later appointed as t....
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....ion on payment terms of the approved plan. 5. However, the Resolution Applicant sent an e-mail on 23.10.2020 seeking withdrawal of the Resolution Plan approved by this Tribunal stating that the Reserve Bank of India denied permission for the Resolution Plan as the Resolution Applicant did not conform to the guidelines laid down for Asset Reconstruction Companies. They demanded the refund of performance guarantee of Rs.25,00,000/- paid by them. 6. The Monitoring Committee held its 2nd meeting on 30.10.2020 through video conference, and after detailed discussions and deliberations the Monitoring Committee resolved as under: - a). In view of non-payment of plan value, there is default in complying with the approved Resolution Plan. Financial Creditor said that as per the provisions of RFRP performance guarantee of 25,00,000/- (Twenty-Five Lakhs Only) to be forfeited. Financial Creditor also pointed out that the RA has never indicated that they were not inclined to implement the plan since the same was approved. Even in the first meeting of the Monitoring Committee held on 26.09.2020 they requested for 30-45 days' time for payment. The Resolution Applicant requested not ....
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....he relevant portion of the order dated 21.09.2021 is extracted as under: - "(24) As discussed above, this 'Tribunal' is of the view that the Respondent failed to implement the plan in its totality and on completion of 330 days, the Company ought to have liquidated by passing appropriate orders. Section 12 of the I&B Code, 2016 stipulates the time limit for completion of insolvency resolution process, proviso to Sub Section 3 of Section 12 states that "Provided further that the Corporate Insolvency Resolution Process shall mandatorily be completed within a period of 330 days from the insolvency commencement date, including any extension of the period of corporate insolvency resolution process granted under this section and the time taken in legal proceedings in relation to such resolution process of the corporate debtor." "(25) As per the above provision of Law, this 'Tribunal' comes to a conclusion that 330 days have expired and upon non-implementation of the plan by the Resolution Applicant, the Adjudicating Authority ought to have passed the Order of Liquidation of the Corporate Debtor. For the aforesaid reasons, this 'Tribunal' pass the following Order. ....
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.... While approving a resolution plan under Section 30 or deciding to liquidate the Corporate Debtor under Section 33, the committee may, in consultation with the resolution professional, fix the fee payable to the liquidator, if an order for liquidation is passed under Section 33, for the balance period of liquidation. As per Regulation 4 of IBBI (Liquidation Process) Regulations, 2016 the fee payable to Liquidator shall be in accordance with the decision taken by the COC under Regulation 39D of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. Further Mr. R. Velu, Resolution Professional, shall act as Liquidator. "RESOLVED THAT, a sum of Rs. 2,00,000/- plus applicable GST plus actual expenses, is being fixed as remuneration for the Liquidator, from the date of the NCLT Order for liquidation." 14. In view of the above, this Tribunal allow the IA(IBC)/159/KOB/2021 as under: - a) The Corporate Debtor M/s. Palm Lagoon Backwater Resorts Private Limited is hereby put under liquidation with immediate effect under Section 33(1) of IBC, 2016. b) The Resolution Professional Shri. R. Velu, [email protected] Reg....