TaxTMI 
TaxTMI 
2022 (12) TMI 776
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....rabad Bench - I, Hyderabad), while passing the 'impugned order' dated 08.07.2022 in IA (IBC) No. 71 of 2022 in CP(IB) No. 651 / 7 / HDB / 2018, at Paragraphs 26 to 31, had observed the following: 26. "In so far as the case on hand is concerned, since the present RP had filed his written consent to act as liquidator the requirement under subsection 1 of section 34 IBC stands satisfied. None of the requirements mandated under sub section 4 of section 33 IB Code, either exist or even pleaded by the Lenders. As regards the allegation that lenders are dissatisfied with the functioning of RP as such another person be appointed to act as liquidator, firstly, the same does not fit in the scope of sub section 4 of IB Code, supra. Nextly, the minutes of the joint lenders meeting held on 26.04.2022 is totally silent with regard to expression of dissatisfaction on the performance of the Resolution Professional. 27. Now coming to the ruling in re, Sandeep Kumar Gupta, relied on by the Learned Counsel Shri. V VSN Raju for the lenders, we state that the facts in the present case do not match to the facts in the case of Sandeep Kumar Gupta. In Sandeep Kumar Gupta's, case NCLT, finding as to no....
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....quidation', against the 'Corporate Debtor', and 'Disposed of' the 'Interlocutory Application'. Appellant's Contentions: 3. Questioning the 'Propriety', 'Validity' and 'Legality' of the 'impugned order' dated 08.07.2022 in IA No. 71 of 2022 in CP(IB) No. 651 / 7 / HDB / 2018, passed by the 'Adjudicating Authority', ('National Company Law Tribunal', Hyderabad Bench - I, Hyderabad), the Learned Counsel for the 'Appellant', submit that the 'Appellant', was 'appointed', as an 'Interim Resolution Professional', of M/s. Sainath Estates Pvt. Ltd.' ('Corporate Debtor') in CP(IB) No. 651 / 7 / HDB / 2018, passed by the 'Adjudicating Authority', ('National Company Law Tribunal', Hyderabad Bench - I, Hyderabad. Further, the 'Corporate Insolvency Resolution Process' of the 'Corporate Debtor', was set into motion, in accordance with the provisions of I & B Code, 2016 and the 'Rules' and 'Regulations', applicable thereto. 4. According to the Appellant, in compliance with the ingredients of Regulation 17 (1) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 ('CIRP Regulations'), constituted the 'Committee of Creditors', and f....
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.... of the 'Appellant' that inspite of the repeated opportunities availed by the 'Resolution Applicant', on account of non-adherence with the 'Terms' of the 'Resolution Plan', and the 'Orders' of the 'Adjudicating Authority' ('Tribunal'), the 'Corporate Debtor', was placed under 'Liquidation', as per 'Order' dated 08.07.2022, wherein, the 'Appellant', was replaced as the 'Liquidator', and one Mr. Gollamudi Krishna Mohan was 'appointed', as the 'Liquidator' of the 'Corporate Debtor', in contravention to the provisions of Section 34 (1) and Section 27 (2) of IBC, 2016. 12. The Learned Counsel for the Appellant, contends that the 'Appellant', before the 'Adjudicating Authority', had pleaded that except, for the 'grounds', specified in Section 34 (4) of the I & B Code, 2016, no change of 'Liquidator', may be permissible, on any other 'grounds', having satisfied the requirements of the ingredients of Section 34 (1) of the Code. 13. The Learned Counsel for the Appellant, points out that a 'Memo', was filed on behalf of the 'Financial Creditor', mentioning that the 'Joint Lenders Meeting', was held on 22.04.2022, wherein, the 'Lenders', had expressed their 'Opposition', regarding the conti....
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....sible or by oral objection during pendency of the suit. Here, though no judicial order can be passed on the memo still the oral objection raised by the learned counsel as to the admissibility of the document is required to be considered and if the Court finds that the objection raised by the learned counsel as to the admissibility is sustainable, the course open to the Court is to reject the document exercising power under Order 13 Rule 3 CPC, the Court is not preclude from passing such order. 31. In any view of the matter, the petitioner herein raised an objection orally or bringing the same to the notice of the Court by filing a memo as to his objection, the Court has to pass appropriate orders, but passed an order which is contrary to law without distinguishing marking and admitting the document in evidence. Therefore, the docket order of the trial Court dated 11.09.2015 is erroneous, since, the trial Court did not exercise jurisdiction that conferred on it." 18. The Learned Counsel for the Appellant, refers to the Judgment of the Hon'ble Supreme Court of India in the matter of B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association (vide Ci....
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....nt' / 'Successful Resolution Applicant's Resolution Plan', was approved by 100% majority by the 'Committee of Creditors', and by the 'Order' of the 'Adjudicating Authority', dated 09.11.2021, and because of the 'Violations' of the 'Terms' of the 'approved Resolution Plan', the 'Respondent' / 'Successful Resolution Applicant', was arrayed as a 'party', seeking relief against him. 24. According to the 'Appellant' / 'Applicant', he had received an e-mail from the Member of the 'Monitoring Committee', Viz. 'Canara Bank', requesting the 'Appellant' / 'Applicant', to move an 'Application', before the 'Adjudicating Authority', and to take further steps, as per 'Law'. 25. It is the stand of the 'Appellant' / 'Applicant', as per Section 33 (3) of the I & Code, 2016, wherein the 'Resolution Plan', 'approved', by the 'Adjudicating Authority', is violated by the 'Corporate Debtor' concern, 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), (iii) of clause (b) sub-section (1). 26. It is brought to the fore t....
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....n 'Adjudicating Authority' ('Tribunal'), is to take into consideration, the 'special circumstances', that may exist, ofcourse depending on the facts and circumstances of the case, before it. Filing of Application: 31. In English 'Law', the Court will allow an 'Application', to be filed by any 'Person', in removing a 'Liquidator', under Section 108 of the UK Insolvency Act, 1986, if it considers proper. 32. The jurisdiction showered on the Court to 'remove' a 'Liquidator', under Section 108 (2) of the UK Insolvency Act, 1986, on cause being exhibited, places a 'Burden', on the 'Petitioner', to 'Show Cause', why a 'Liquidator', ought not to be removed, but, it was not an essential condition for removal of a 'Liquidator', to show a 'personal misconduct' or 'unfitness'. 33. It is to be remembered that a 'Liquidator', may be removed, where he has shown, insufficient 'Vigour', in carrying out his 'duties', as per decision in 'Re Keypak Homecare Ltd.' (1987) BCLC 409 (Ch D.). Removal of Liquidator : 34. A 'Liquidator', is to act in the interests of 'General Body' of 'Creditors', and ought not to continue in Office, if the 'Creditors', no longer have confidence in its ability, to re....
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.... him met all the requirements under Section 30 (2) of the I & B Code, 2016, and that the 'Committee of Creditors' and the 'Financial Creditor', were not satisfied with the 'Resolution Professional', the 'Application' for 'Replacement' of 'Resolution Professional' was allowed. Complaints : 39. To be noted, that a 'Stakeholder', affected by the 'conduct of the Resolution Professional', may file a 'complaint', under 'IBBI' ('Grievance and Complaint Handling Procedure') Regulations 2017. Therefore, the 'Creditors' are 'Stakeholders' affected by the actions of 'Resolution Professional', may initiate 'Proceedings', under the aforesaid Regulations and in the event of 'allegations' are sustained, the 'IBBI', may recommend for 'Replacement' of a 'Resolution Professional', under Section 34 (4) (b) of the 'Code'. 40. As far as the present case is concerned, this 'Tribunal', points out that before the 'Adjudicating Authority', on behalf of 'Lenders', even though, a reliance was placed on the 'Minutes' of 'Joint Lenders Meeting', that took place on 26.04.2022, the said 'Minutes', was conspicuously silent, about the aspect of 'any dissatisfaction being expressed', pertaining to the 'performa....