TaxTMI 
TaxTMI 
2022 (1) TMI 718
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....se are that an application under section 7 of IBC was filed by financial creditor Relan Buildwell Pvt. Ltd. against Kaliber Associates Private Ltd. (Corporate Debtor)which was admitted on 18.1.2019. Since no resolution of the corporate debtor could be effected during the CIRP, liquidation order dated 2.1.2020 was passed by the Adjudicating Authority. 3. The Appellants, who claim to have stake in the liquidation of the Corporate Debtor as unsecured financial creditors, have stated and argued in the appeal that during the liquidation process, the liquidator did not consult and take advice of the members of the Stakeholders Consultation Committee in accordance with legal provisions, on issues relating to the sale of the assets of the Corporate Debtor. According to the Appellants, after the liquidation order was passed, the Stakeholders Consultation Committee was constituted by the liquidator, and in its first meeting held on 7.3.2020, the liquidator obtained the approval of Stakeholders Consultation Committee to sell the Corporate Debtor as a going concern, as stipulated under Regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (herea....
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....sed on realizing CIRP and liquidation costs without attention on timely liquidation of assets of the corporate debtor. 6. The Learned Counsel for Liquidator (Respondent No. 1) has argued that the Impugned Order was passed on 24.9.2021, whereas the appeal has been filed on 8.11.2021,which is after the limitation period, and therefore, the appeal is barred by limitation. He has adverted to Para 36 in the reply to the application IA No. 4328 of 2021 filed by the Appellants, wherein the Appellants have claimed to represent more than 77% of the members of the Committee of Stakeholders whereas the fact is that only one Appellant, namely Paradise Systems Pvt. Ltd.(Appellant No. 3) is a member of the SCC, while Appellants No. 1 and 2, namely, BDR Builders and Developers Pvt. .Ltd., and Columbia Buildtech Pvt. Ltd. are not members of SCC. Hence, he has claimed, the Appellants jointly represent only 25% of the voting share in SCC, which has four members, namely Paradise Systems, Aadhar Infraholding, Income Tax Department and Lalit Modi HUF. Thus, the Appellants have given incorrect information in their application IA No. 4328 of 2021 and they have no locus standi in preferring this appeal a....
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.... three applicants is not to the extent of 75% in the SCC, but is limited to only 25%, as only Applicant No. 3, Paradise Systems Private Limited (appellant in this appeal) is a member of the SCC. The Impugned Order also records the finding that no exceptional circumstances have been made out in the application which would warrant the change of liquidator using inherent powers under rule 11 of NCLT Rules, 2016. 10. Sub-section 5(c) of Section 60 of IBC gives jurisdiction to National Company Law Tribunal for disposing any question of law or facts arising in relation to liquidation proceedings, and thus the Adjudicating Authority can consider such a matter on point of facts of law. Sub-section 5 of section 60 is reproduced below for ready reference - " 60. Adjudicating Authority for corporate persons (5) Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of - xx xx xx (c) any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corpor....
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....limitation period and is, therefore, barred by limitation. We note that the Impugned Order was passed on 24.9.2021 and the appeal was filed on 8.11.2021. Thus, the appeal is filed 15 days after the expiry of 30 days" limitation period. In view of the prevailing conditions of corona pandemic and the suo moto order of Hon"ble Supreme Court in Misc. Application No. 665/2021 in SMW(C) No. 3/2020, in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.3.2020 till 2.10.2021 shall stand excluded from limitation period. Since the Impugned Order was passed on 24.9.2021, the period of limitation for this appeal shall begin to be counted from 3.10.2021. Thus the appeal was filed on 37th day after the start of limitation period. Looking to the difficult circumstances due to corona pandemic, as classified by the Appellants, we are inclined to condone the delay in filing the appeal beyond 30 days. In light of this condonation of delay, the appeal is considered to be within limitation. 17. The relevant provision in Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 regarding sale of assets is given in regulations 32....
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....rbook), when it was decided to make renewed efforts for sale of assets of Corporate Debtor. The second round of e-auction resulted in the sale of Honda car at Rs. 1,51,500/-. Thereafter, again the SCC authorized the liquidator to conduct the third round of e-auction process for sale of assets of the Corporate Debtor (pg. 167 of the Appeal paperbook). 19. The Appellants have raised objection about the procedure adopted in 3rd and 4th e-auction processes. The third meeting of SCC took place on 9.11.2020, and in the agenda note item No. 2 of Part B which includes "list of issues to be voted upon after discussions" wherein the sale of remaining assets was also discussed in the third SCC meeting (agenda note of third SCC meeting at pgs.141-170 of Appeal paperbook Vol I). 20. On perusing the agenda note for the third SCC meeting held on 9.11.2020 (supra), we find that the proposed resolution in the agenda note is as follows: - "RESOLVED FURTHER THAT the committee hereby authorize(s) the Liquidator to conduct e-auction process for the sale of the assets of the Corporate Debtor under the aforesaid provisions and undertake debt transactions for payment of said fees/costs/expenses. The s....
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.... meeting on 24.5.2021, whereas the actual auction took place on 18.9.2021, again after almost 4 months. Thus, there is a significanttime gap between decisions taken for e-auctions in the third and fourth SCC meetings and the holding of the e-auctions. 24. Regulation 47 of the Liquidation Regulations provides "Model time- line for liquidation process". According to this regulation, from the date of commencement of liquidation and appointment of liquidator under sections 33 and 34 of IBC the time provided for completion of liquidation process is 365 days. Further, sub-regulation (1) under Regulation 44, is as follows:- "44. Completion of liquidation. - (1) The liquidator shall liquidate the corporate debtor within a period of one year from the liquidation commencement date, notwithstanding pendency of any application for avoidance of transactions under Chapter III or Part II of the Code, before the Adjudicating Authority or any action thereof." Thus if the liquidation of the Corporate Debtor is to be done as a going concern, an additional 90 days is allowed beyond one year for completion of liquidation process. 25. In the present case, from third meeting of SCC onwards, it was ....