TaxTMI 
TaxTMI 
TaxTMI 
2021 (2) TMI 1368
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.... liquidated and the Respondent herein be appointed as the Liquidator to carry out the liquidation process as envisaged under the provisions of Insolvency & Bankruptcy Code, 2016 (IBC, 2016) r/w Regulations viz., IBBI (Liquidation Process) Regulations, 2016. 3. Consequent upon the order of liquidation passed by this Tribunal, it is stated that four meetings of the stakeholders committee were conducted by the Liquidator. 4. It is also further seen that the Liquidator has called for bids from the prospective bidders in relation to e-auction sale of the Company under Liquidation on a going Concern basis. 5. The 1st of the said auctions was fixed on 05.11.2019 which had fixed a reserve price of Rs. 85 Crore which did not elicit any response and in the circumstances the Reserve Price was reduced and fixed at Rs. 72 Crore and the date of auction was fixed as 18.11.2019. There were no takers on the said date of e-auction as well; the reserve price was therefore reduced to Rs. 66 Crore and the e-auction was scheduled to be held on 26.12.2019 which also did not elicit any response and in the circumstances, finally, the reserve price was reduced to Rs. 63 Crore and a fresh auction was cond....
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....ion has been fully deposited to the account of the Liquidator. 11. In the circumstances, the Liquidator has chosen to execute Deed of Sale dated 14.10.2020 between the Liquidator and the Applicant, which also brings forth the fact of the e-auction being conducted on 22.01.2020, wherein the Applicant was declared as the highest bidder. The bid price to be of INR 63 Crore including the EMD of Rs. 6.3 Crore and the same being referred to as the sale consideration in the Deed of Sale. 12. It is also evident from the recital portion of Deed of Sale, particularly clause 'H' which reads as follows:- "The sale of the Corporate Debtor as a going concern is effected by the transfer/allotment of the fresh shares in the capital of the Company more specifically described in the Schedule hereto (hereinafter referred to as "Sale Assets") to the Purchaser, thereby conveying the Company as a going concern to the Purchaser." 13. In correlation with the above, it is also seen that Paragraph 3, 4, 5 and 8 reflects as follows:- 3. On payment of the sale consideration as above, effective the date hereof, the share capital of the Company shall be as under: a) Authorized Share Capital : R....
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....'H' of the recital portion reads as follows:- Schedule; Sale Asset (S); 100% of the fully diluted equity share capital of the Company (Winwind Power Energy Private Ltd.) comprising of 10,000 equity shares of Rs. 10/- each. 15. Consequent to the Deed of Sale as executed by the Applicant and the Respondent in the capacity as the Liquidator of the Company under Liquidation for the sale of the Company as a going concern, this Application has been preferred by the Applicant seeking for the following reliefs:- 5.1 Declare that in view of payment of the entire sale consideration as on 14.10.2020 and in view of Clause 8 of the Sale Deed, Corporate Debtor stands relieved of all the liabilities arising prior to date of sale, i.e., 14.10.2020 and/or arising out of acquisition of control over the Corporate Debtor and that all the liabilities thus, stand extinguished and consequently, direct that appropriate filings shall be made with the concerned authorities (including without restriction Registrar of Companies, Central Registry of Securitisation Asset Reconstruction and Security Interest (CERSAI), information utilities under the IBBI (Information Utilities) Regulations etc. ....
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....8. Further in relation to the filings which are required to be done on the part of Liquidator, the Liquidator in compliance with the provisions of IBC, 2016 r/w Attendant Regulation Rules as framed by the IBBI or any circular issued therein shall provide all cooperation to the extent warranted on the part of the Liquidator in terms of the Deed of Sale as executed between the parties. 19. In relation to prayer as sought for in No. 5.2, it is seen that the schedule exclusively provides that share capital stands diluted and only upon dilution the consideration has been appropriated as evident from the schedule to the Deed of Sale. 20. In relation to clause No. 5.3 of the relief portion, it is seen that it is a prerogative of the Applicant to classify the manner it wants to classify between equity and loan as the Company under Liquidation has been taken over on a going Concern basis. 21. In relation to clause No. 5.4, it is seen that the Applicant has confused itself in relation to the affairs of Liquidation which is to be a concern of the Liquidator (i.e.) of the Realisation and Distribution Account on the one hand and the Company under liquidation on the other which has been sold ....
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....e parties. In this regard, it is required to be noted here that the Ministry of Corporate Affairs by their General Circular No. 04/2020, F. No. 01/02/2019- CL -V dated 17.02.2020 has given a clarification in relation to the Filing of the necessary forms before the Registrar of Companies by the Insolvency Professional or the Liquidator, as the case may be. The Applicant and the Liquidator is required to be aware of the same. 25. Before parting, it is required to be noted that the provisions of Section 53, Section 54 r/w Regulations 45 of the Regulations framed by the IBBI viz., (Liquidation Process) Regulations, 2016 are required to be adhered to. 26. While section 53 deals with the distribution of assets based on the waterfall mechanism, as provided therein to the various stakeholders of the Company including the preferential shareholders, if any, and the equity shareholders or partners as the case may be. 27. Section 54 contemplates dissolution of the Corporate Debtor. In amplification of Section 54, Sub Regulation 3 of Regulation 45 of the (Liquidation Process) Regulation, 2016 which reads as follows:- 45. Final report prior to dissolution:- (3) The liquidator shall submit....