Alok Kumar Kuchhal vs Ratandeep Infrastructure Private Limited

ORDER

“i.

The Auction dated 06.06.2022 be taken on record.

ii.

The Liquidator be directed to proceed with the auction process and transfer of assets in terms with the auction dated 06.06.2020. …”

“…….

a. Allow the present Application;

b. Direct the Respondent to provide the Information Memorandum, RFRP and all other information/clarification and access to the Assets of the Corporate Debtor as required by the Applicant;

c. Grant the Applicant time of 30 days for submission of Resolution Plan to the Respondent from the date of Providing the Information Memorandum, RFRP and all other information/clarification and access to the Assets of the Corporate Debtor;

d. Direct the Respondent to place the Resolution Plan of the Applicant before COC of M/s Ratandeep Infrastructure Private Limited;

e. pass any other or further order(s) as this Hon’ble Tribunal deem fit and proper in the facts and circumstances of the matter.”

“…..

IA NO. 220/2021

This is an application filed by the AIG Infratech (India) Private Limited seeking to submit a resolution plan in respect of the Corporate Debtor. This application has come rather late in the day as the CIRP was initiated against the Corporate Debtor vide order dated 16.04.2019, the CIRP has been in continuing for the last two and half years. At this stage, no useful purpose would be served in keeping IA NO. 220/2021 when the COC has already resolved to liquidate the Corporate Debtor and the application as IA No.73/2021 is pending for consideration.

Therefore, IA NO. 220/2021 is dismissed as infructuous. …..” Copy of order dated 07.12.2021 has been annexed as Annexure-3 with the Application.

“Date :12^th March 2022

Dear Mr. Rakesh Kumar Agarwal

Bankey Bihari Infrahomes Private Limited

Dear Sir,

With reference to your email dated 03.03.2022 wherein letter dated 28.02.2022 was sent an attachment and the reminder email dated 10^th March 2022 with respect to consideration of your “Expression of Interest to submit the Compromise and Arrangement under Regulation 2B of the IBBI (Liquidation Process) Regulations, 2016 in the matter of Ratandeep Infrastructure Private Limited.”

Please note that the CoC in its meeting dated 28^th January 2021 has decided for liquidation and has not approved or recommended “the liquidator to first explore sale of the Corporate debtor as a going concern” in terms of Regulation 39C of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

Also, it is most pertinent to mention that in my opinion the Corporate Debtor i.e. Ratandeep Infrastructure Private Limited is not a going concern as the only asset available in the company is a Land and there is no activity at all in the Company or on the land for apporx. last 4 years, still if you are interested in the project/ land you may buy the same in the Auction during the liquidation process.

Thanks and Regards,

Alok Kumar Kuchhal

Liquidator of

Ratandeep Infrastructure Private Limited”

“……………

The liquidator is expected to act in accordance with the liquidation Process Regulations. The decision on the proposed scheme be taken within a period of three weeks’ from today. No other directions are called for in IA NO. 115/2022 and hence the same shall stand disposed of.”

i.

issuing of a Public Announcement in Form-B;

ii.

intimating ROC Kanpur about the Liquidation process of the Corporate Debtor;

iii.

opening of bank account in accordance with Regulation 41(1) of Liquidation Regulations, 2016;

iv.

appointing of two set of Registered Valuers to obtain the liquidation and fair market value of the land and financial assets of the Corporate Debtor;

v.

collating the claims claims received from various creditors/ stakeholders of the Corporate Debtor;

vi.

forming of stakeholder's consultation committee (wherein the largest unsecured financial creditor, largest unsecured financial creditor in a class i.e. homebuyers and the largest shareholder was considered)

vii.

filing of first Progress Report within fifteen days after the end of the quarter in which he is appointed (i.e. for the period from 31.01.2022 to 31.03.2022)

“Dear Claimants / Stakeholders, Please note that after liquidation order dated 31.01.2022 one application was filed by "Bankey Bihari Infrahomes Private Limited" before NCLT, Allahabad for seeking directions from the Hon'ble Tribunal for submission of Scheme of Compromise or arrangement, wherein the Hon'ble Tribunal vide order dated 13.04.2022 had directed: “the liquidator to act in accordance with the liquidation Process Regulations. The decision on the proposed scheme be taken within a period of three weeks' from today."

Thereafter the said Company had approached the liquidator seeking various information and the same was duly provided (vide emails exchanged between the Company and liquidators from 20.04.2022 to 04.05.2022), but surprisingly they had not reverted with any scheme of compromise or arrangement so far. In the meantime, the period prescribed under the code and the period granted by the Hon'ble Tribunal had also expired (90 days period as prescribed under the IBC was expired on 02.05.2022 and 3 Weeks period granted by Hon'ble NCLT was expired on 04.05.2022), therefore, the liquidator in compliance of law and in the best interest of stakeholders had decided to proceed further in terms of provisions of IBC for auction of assets of Corporate Debtor.

Please find attached herewith the auction notice as published today in the newspapers and as uploaded on the website of IBBI, whereas the whole auction process and timelines are mentioned.

I hope the above status update is sufficient in all manners, in case of any query please feel free to contact the undersigned. Thanking you, Alok Kumar Kuchhal IP Registration No: IBBI/IPA-002/IP-N00114/2017-18/10284 Resolution Professional Ratandeep Infrastructure Private Limited (a company under corporate insolvency resolution process by NCLT order dated April 16th, 2019)”

i.

Firstly that the service tax included in the principal amount paid by them should not be deducted;

ii.

Secondly that the burden of CIRP cost should not be imposed on them;

“…..

PRAYER

It is, therefore, most respectfully prayed that this Hon'ble Tribunal may kindly be pleased to:

a)

Allow the present application;

b)

That this Hon'ble Tribunal may be pleased to grant an interim injunction against sale of the assets of the Corporate Debtor by the Liquidator till the scheme of compromise is approved if so initiated by the Respondent liquidator.

c)

To take note of the conduct as demonstrated by the Liquidator.

d)

Direct the respondent to submit the basis for not exploring possibilities for the sale of the Corporate debtor as a going Concern.

e)

Direct the respondent No 1 Liquidator to furnish records that demonstrates the steps (during CIRP and Liquidation) taken by him to keep the Corporate Debtor as a going concern d a part of its duties.

f)

Direct the Respondent no 1 to clarify and demonstrate whether did he consult with the stakeholders of the Corporate Debtor &/or erstwhile CoC member while replying to the applicant on 12^th March 2022 in response to the applicant's request.

g)

Direct the Respondent no 1 to take necessary steps as per the provisions under regulation 2B of the IBBI (Liquidation Process) Regulations.

h)

Direct the respondent No 1 to place the Scheme of Compromise and Arrangement of the Applicant before the Creditors/ Stakeholders Consultation Committee of M/s Ratandeep Infrastructure Private Limited;

i)

That this Hon'ble Tribunal may be pleased to direct the Liquidator to submit the Scheme of Compromise/ Arrangement proposed by the Applicant under Section 230 of the Companies Act, 2013 before this Hon'ble Tribunal.

j)

That this Hon'ble Tribunal may be pleased to extend period for further by 90 days for approval of scheme to complete the process of compromise as per applicable laws).

k)

Pass any other or further order(s) as this Hon'ble Tribunal deem fit and proper in the facts and circumstances of the matter.”

“……

9.

During the course of hearing, the applicant was asked that why they did not approach this Adjudicating Authority for further directions as regard to providing of information which was required from the Liquidator to propose the scheme, no satisfactory reply was given to this query. It is also noted that the auction is going to take place on 02.06.2022, hence, the applicant herein can very well participate in that process and offer the maximum value for the assets of the corporate debtor.

10.

Considering this fact, we do not find any merit to intervene as of now as the object of maximization of value of assets can be achieved during the liquidation process also. We also make it clear that the Liquidator shall act with a view to maximize the value of the corporate debtor and in case the value offer is found to be below the value offered made by the applicant herein, the auction process may be reinitiated. …….”

“…..

(ii)

Stay the proceedings if any initiated by the respondent till the final disposal of the application; and/or

(iii)

Grant stay on the sale, if any, which concluded on 06.06.2022 in terms of the E-Auction dated 31.05.2022 published on 01.06.2022; and/or;

(iv)

Grant stay on the Earnest Money Deposit (EMD), if any received, from the prospective bidder in respect to the Notice for sale of assets published on 01.06.2022; and/or;

(v)

Quash the sale notice published on 01.06.2022 by the respondent; and/or;

(vi)

Direct that the sale proceeds and Earnest Money Deposit (EMD) (if so received by the respondent/liquidator) must not be distributed; and/or;

(vii)

Take penal actions against the Liquidator in view of his conduct including his removal as liquidator as the Corporate Debtor; and /or; ……..”

Sh. Sanjeev Panda, Advocate for the applicant requested time for filing the rejoinder.

The same will be filed within 2 weeks by serving an advance copy to the other side.

Till then auction process not to be continued.

List this matter on 03rd August, 2022.”

“…….

i)

Set aside and/or modify the order dated 01.06.2022 passed by the Hon'ble NCLT, Allahabad; and/or

ii) Grant stay on the sale, if any, which concluded on 06.06.2022 in terms of the E-Auction dated 31.05.2022 published on 01.06.2022 by the Liquidator; and/or

iii) Grant stay on the Earnest Money Deposit (EMD), if any received, from the prospective bidder in respect to the Notice for sale of assets published on 01.06.2022; and/or

iv) Direct the Liquidator/Respondent to take into consideration the Scheme of Compromise and Arrangement of the Appellant before the Creditors/ Stakeholders Consultation Committee of Corporate Debtor in transparent manner; and such other reliefs.

“……

26.

A perusal of the order of the Adjudicating Authority dated 1.6.2022 shows that the Adjudicating Authority, after considering the past proceedings in the liquidation process and also the inability of the Appellant to submit a scheme of compromise and arrangement in the given time of three weeks from 19.4.2022, ordered that the e-auction process may be continued. The Adjudicating Authority further ordered that if the Appellant offers a better value for the land of the corporate debtor than what is discovered in the e-auction, the e-auction could be reinitiated.

27.

A perusal of the series of events during the liquidation process makes it clear that the Appellant, through Mr. Rakesh Kumar Agarwal, made an attempt through the company AIG Infratech Private Limited to submit a resolution plan much after the CoC had decided to liquidate the corporate debtor and the application for liquidation has been filed by the Resolution Professional before the Adjudicating Authority. This IA 220/2021, was filed in July, 2021 through the company AIG Infratech Private Limited for seeking order to submit a resolution plan, was dismissed by the Adjudicating Authority on the ground that “no useful purpose would be served in keeping IA 220/2021, when the COC had already resolved to liquidate the Corporate Debtor.”

28.

Thereafter, after the commencement of liquidation process vide order dated 31.1.2022, Mr. Rakesh Kumar Agarwal again sent a letter to the Liquidator on 3.3.2022, after passage of more than one month from the date of commencement of liquidation requesting to submit a scheme of compromise and arrangement, and upon the Liquidator expressing inability to accept such a scheme in view of the commencement and progress of liquidation, Mr. Rakesh Kumar Agarwal filed IA 115/2022 through another company ‘Bankey Bihari Infrahomes Private Limited’ seeking permission of the Adjudicating Authority for submission of a scheme of compromise and arrangement. This interlocutory application was disposed of by the Adjudicating Authority vide order dated 13.4.2022 with the following observations: -

“This is an application filed by the “Bankey Bihar Infrahomes Private Limited” seeking a direction to the liquidator to consider the scheme propounded by the Applicant herein.

Ms. Babita Jain, learned counsel for the Applicant present. Ms. Snehal Sharda, learned counsel appearing on behalf of the liquidator present.

The liquidator is expected to act in accordance with the Liquidation Process Regulations. The decision on the proposed scheme be taken within a period of three weeks’ from today. No other directions are called for in IA No. 115/2022 and hence the same shall stand disposed.”

29.

It is noted that after exchange of a number of e-mails between the Appellant and the Liquidator, starting with e-mail dated 20.4.2022, the Appellant finally submitted the requisite scheme vide e-mail dated 24.5.2022 (The e-mails exchanged between the Appellant and the Liquidator are attached at pp. 98-122 of the appeal paperbook). It is noted when the information regarding claims which was sought by the Appellant was provided by the Liquidator vide e-mail dated 4.5.2022 (attached at pp. 103-104 of the appeal paperbook), the Appellant forwarded the confidential information to erstwhile directors of the corporate debtor, which was in breach of the confidentiality undertaking provided by the Appellant.

30.

The Liquidator, on not receiving no further information from the Appellant about submission of the scheme of compromise and arrangement after his e-mail dated 2.5.2022, and when the three weeks’ time starting from 13.4.2022 granted by the Adjudicating Authority had expired on 4.5.2022, proceeded to publish the auction notice on 20.5.2022.

31.

It appears that on publication of this auction notice, the Appellant sent an e-mail dated 21.5.2022 seeking more time for submission and finalization of the scheme on which the Liquidator expressed his inability to provide more time vide e-mail dated 24.5.2022. The Appellant, thereafter, submitted the requisite scheme to the Liquidator on the evening of 24.5.2022 and immediately thereafter filed IA 154/2022 before the Adjudicating Authority requesting for stay of the auction process and directions to place the proposed scheme before the Stakeholders Consultation Committee.

32.

The above-stated actions of Mr. Rakesh Kumar Agarwal make it absolutely clear that he, through different corporate entities, has attempted to intervene in the process of liquidation by filing the three interlocutory applications viz. IA 220/20221, (which was dismissed by the Adjudicating Authority), IA 115/2022 and IA 154/2022. We also note that Mr. Rakesh Kumar Agarwal in utter disregard to the confidentiality agreement provided to the Liquidator to keep the information supplied to him by the Liquidator confidential, went ahead and shared such information with the counsel of Mr. Prince Jain, a creditor whose claim was not admitted during CIRP of the corporate debtor.

33.

We also note that the Liquidator and the Adjudicating Authority have with due regard to fairness, natural justice and in consonance with the objectives of IBC, provided an opportunity through order in IA 115/2022, giving three weeks’ time for the submission and decision on the purported scheme of compromise and arrangement as claimed by the Appellant which the Appellant failed to do in the time limit provided and was, thus, unable to establish his bonafide about his seriousness in proposing such a scheme. This has to be seen in the context of the fact that the liquidation order was passed on 31.1.2022, and that the prescribed time period for completing liquidation process was substantially over by this time.

34.

Thus, in view of the fact that the Appellant neither submitted the scheme of compromise and arrangement within the stipulated time which was upto 4.5.2022 nor did he inform the Liquidator about the delay in submitting the scheme or seek any extension of time limit from the Adjudicating Authority, the intention and seriousness of the Appellant in submitting a scheme as prayed by him appears to be doubtful.

35.

In view of the above-stated situation and the turn of events, we are of the clear opinion that the Liquidator, being duty bound to proceed in accordance with the provisions of IBC and Liquidation Process Regulations when the purported scheme was not submitted in three weeks, acted quite appropriately and in consonance with the provisions of law by issuing the auction notice dated 19.5.2022 which was published in newspapers on 20.5.2022. The submission of the said scheme by the Appellant on 24.5.2022 after a delay of twenty days and the filing of IA No. 154/2022 on 25.5.2022, should therefore, be viewed in this context. The order of the Adjudicating Authority dated 1.6.2022 in IA 154/2022, whereafter a fresh auction notice was published by the Liquidator are also events that follow the correct course as stipulated in the liquidation process of the corporate debtor.

39.

The Learned Counsel for Appellant has cited the judgments of this Tribunal in the matters of S.C. Sekaran vs Amit Gupta & Ors. [CA (AT)(INS) 495-496/2018] and Y. Shivram Prasad vs. S. Dhanapal & Ors. [CA(AT)(Ins) 224/2018] wherein the Tribunal held that steps should be taken for the revival and continuance of the Corporate Debtor by protecting the Corporate Debtor from its management and from corporate death by liquidation. We distinguish this judgment on the ground that while it affirms the spirt and ethos of the IBC in that “the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation”, and also “even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern” but it doesn’t hold that the any scheme of compromise or arrangement if proposed in breach of regular timelines of the liquidation process has to be necessarily considered.

41.

Both the Learned Counsel for Appellant and the Learned Counsel for Respondent No. 2 have cited the judgment of Hon’ble Supreme Court in the matter of Arun Kumar Jagatramka vs. Jindal Steel and Power Limited & Anr. [(2021) 7 Supreme Court Cases 474] in support of their rival contentions with regard to any ineligibility that would attach to the Appellant in providing a scheme of compromise and arrangement under section 230 of the Companies Act, 2013 with reference to section 29-A of IBC which pertain to ineligibility of related persons to submit resolution plan and section 35(1)(f) of IBC, which is a provision applicable during liquidation. It is instructive to have a look at the relevant portion of the Arun Kumar Jagatramka judgment (supra), which is as hereunder:-

“71…..In the context of the statutory linkage provided by the provisions of Section 230 of the 2013 Act with Chapter III IBC, where a scheme is proposed of a company which is in liquidation under the IBC, it would be farfetched to hold that the ineligibilities which attach under Section 35(1)(f) read with Section 29-A would not apply when Section 230 is sought to be invoked. Such an interpretation would result in defeating the provisions of the IBC and must be eschewed.

72.

An argument has also been advanced by the appellants and the petitioners that attaching the ineligibilities under Section 29-A and Section 35(1)(f) IBC to a scheme of compromise and arrangement under Section 230 of the 2013 Act would be violative of Article 14 of the Constitution as the appellant would be “deemed ineligible” to submit a proposal under Section 230 of the 2013 Act. We find no merit in this contention. As explained above, the stages of submitting a resolution plan, selling assets of a company in liquidation and selling the company as a going concern during liquidation, all indicate that the promoter or those in the management of the company must not be allowed a back-door entry in the company and are hence, ineligible to participate during these stages. Proposing a scheme of compromise or arrangement under Section 230 of the 2013 Act, while the company is undergoing liquidation under the provisions of the IBC lies in a similar continuum. Thus, the prohibitions that apply in the former situations must naturally also attach to the latter to ensure that like situations are treated equally.”

42.

A perusal of the above-mentioned observation in the Arun Kumar Jagatramka judgment (supra) makes it very clear that the promoter or those in the management of the company under liquidation cannot be allowed a ‘backdoor entry’ into the company and hence, would be considered ineligible to submit a proposal under section 230 of the Companies Act, 2013. When we view the continuous efforts of Mr. Rakesh Kumar Agarwal in seeking to ‘takeover’ the corporate debtor through various stratagems, and also the finding that he is in ‘collusion’ or acting in concert with the erstwhile management of the corporate debtor, the motive or intention in putting forward a useless scheme of compromise and arrangement in respect of the corporate debtor becomes seriously doubtful. The observation of Hon’ble Supreme Court regarding ‘backdoor entry’ in the corporate debtor by the erstwhile management then appears to be a very distinct, something that we should not disregard. In this background, the judgment of this tribunal in the matter of Y. Shivram Prasad (supra) should also be viewed, so that following such a judgment should not lead to undesirable consequences as are pointed out in the Arun Kumar Jagatramka Judgment (supra) of Hon’ble Supreme Court.

43.

The Learned Counsel for Appellant has also cited the judgment of this Tribunal in the matter of Punjab National Bank vs. EVA Agro Feeds Pvt. Ltd. & Anr. [CA(AT)(INS.) No. 757 of 2021], wherein it is held that “the successful bidder in the auction sale does not acquire any vested right in law to enforce the auction.” We are conscious of the fact that the issue in this appeal is not about any right of the successful bidder, but where the Adjudicating Authority has considered all the related facts and circumstances concerning the request of the Appellant in proposing a scheme of compromise and arrangement, and thereafter passed an order which balances the liquidation process with the need to avoid liquidation of the corporate debtor. This judgment, therefore, does not support the case of the Appellant.

44.

The Senior Learned Counsel for Respondent No. 2 has adverted to the judgment of the Hon’ble Supreme Court in the matter of Ebix Singapore (P) Ltd. v. Educomp Solutions Ltd. [(CoC), (2022) 2 SCC 401], wherein it is held that the “if the CIRP is not completed within the prescribed timeline, the corporate debtor is sent into liquidation…..We cannot afford to be swayed by abstract conceptions of equity and ‘contractual freedom’ of the parties.” We note that the Adjudicating Authority in the present case has struck a fine balance between the right of the Appellant in proposing the scheme for compromise and arrangement and the timely and successful completion of the liquidation process of the corporate debtor, a move that would be in accordance with the ruling in the Ebix Singapore judgment (supra).

45.

In view of the above-noted detailed discussion, it is clearly established that the Adjudicating Authority provided reasonable and sufficient opportunity to the Appellant to submit a credible scheme of compromise and arrangement, and the fact that the scheme so presented by the Appellant was prima-facie found to inflate the total payments by provisioning payments to creditors who are either related to the corporate debtor or for such creditors who had not filed legitimate claims in the liquidation process and thus, the proposed payments were in effect not of greater value than the amount being offered by the successful bidder in the e-auction.

46.

We, therefore, hold the clear opinion that the Adjudicating Authority has not committed any error in disposing of the IA 154/2022 by the Impugned Order allowing the Liquidator to proceed with the e-auction and not allowing any more time for consideration of the scheme proposed under section 230 of the Companies Act, 2013. In view of this inescapable conclusion that the Adjudicating Authority has not erred in passing the Impugned Order, the appeal is dismissed, and is accordingly disposed of.

47.

There is no order as to costs. …..”

“…

A) Allow the present Application and issue appropriate order/directions for a fresh auction qua the assets of the Corporate debtor

B) Allow the present Application and issue appropriate order (s)/direction(s) for the proper resolution and revival of the corporate debtor in terms of the Insolvency and Bankruptcy Code,2016 and/or

C) Pass such other and further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the Code.”

“….. We have heard learned counsel for the appellant for sometime at the inception. We put to learned counsel for the appellant whether the appellant is willing to upfront deposit a sum of Rs.12.48 crores which is the amount he claims he is willing to deposit under the scheme in order to further proceed in the matter.

We passed over the matter once and called it a second time in the post lunch session when learned counsel for the appellant stated that he would obtain instructions and the amount of Rs.12.48 crores would be deposited with the Liquidator within a period of 15 days from today.

We put to notice the parties that if the aforesaid amount is deposited we may consider issuing the following directions:-

(a)

For the liquidator to examine the scheme proposed by the appellant.

(b)

In case, ultimately the appellant succeeds, to compensate the auction purchaser with appropriate interest on the 25% amount deposited by him.

(c)

Not calling upon the auction purchaser at this stage to deposit the balance 75% amount but keeping his option to purchase open.

List on 07th February, 2023. We make it clear that no request for extension of time to deposit the aforesaid amount shall be entertained.”

“I.A. (Dy.) No.27202/2023 and I.A. (Dy.) No. 27204/2023

Applications are taken on board. Learned counsel for the applicant urges that he did not participated in the auction because somehow he missed out on the auction but he is willing to pay more. There is hardly a reason for the applicant to intervene. Applications stand dismissed.

I.A. No.26569/2023 and I.A. No. 26573/2023

These applications are by the home buyers who claim that the process is carried out in a hurry therefore the actual price is not being realized. Once the process is followed, such kind of endeavours will only prolong the matter and go contrary to the very objective of the Insolvency and Bankruptcy Code, 2016 (IBC). Applications stand dismissed. Learned counsel for the appellant states that the appellant has not been able to raise the amount of Rs.12.48 crores but has got a draft of Rs.3,00,00,000/-. Despite this we have heard learned counsel for the appellant. The bottom line is that 12.48 crores haven not been brought as assured on the last date. The civil appeal stands dismissed accordingly.”

Counter Reply on behalf of the Respondent i.e Bankey Bihari Infrahomes Private Limited

“IA No. 115/2022

“……… The liquidator is expected to act in accordance with the liquidation Process Regulations. The decision on the proposed scheme be taken within a period of three weeks’ from today. No other directions are called for in IA NO. 115/2022 and hence the same shall stand disposed of.”

“Dear Mr. Alok Kuchchal, Liquidator, M/s Ratandeep Infrastructure Private Limited Pursuant to the orders dated 13.04.2021 in IA 115/2022 passed by Hon’ble NCLT Allahabad (copy attached). Kindly note that we have still not received the documents as requested to you vide our request letter dated……to enable us prepare the Scheme in terms of the provisions of the Code

Brief list of information/documents required are as under:

1.

Information Memorandum submitted to Committee

2.

Fair & Liquidation value of the Corporate Debtor as on CIRP Commencement date

3.

Developments/evolvements during the CIRP which are not covered in the Information Memorandum

4.

Eligibility Criteria and Evaluation Matrix which was approved by the Committee of the Creditors for the prospective resolution applicants to submit the Resolution plan

5.

Particulars of pending litigations

6.

Particulars of CIRP Cost approved by the Committee

7.

Any other information/document which are relevant for the purposes of preparation of the Scheme Your immediate action in this regard will be highly appreciated. Regards, Manpreet Kour Aggarwal Heights Bankey Bihari Infrahomes Pvt. Ltd. Khasra No. 962, NH-58 Raj Nagar Extn. Ghaziabad. Contact No. 8588848366 Email Id aggarwalheights@gmail.com Web Site: www.bankeybihari.co”

“…… From Aggarwal Heights> aggarwalheights@gmail.com>Da te: Sat, May 21, 22 at 4:6 PM Subject: Re: In the matter M/s Ratandeep Infrastructure Private Limited Under Liquidation To: Alok Kumar Kuchhal irp.ratandeep@gmail.com Kind attention Shri Alok Kuchal Dear Sir, This is to update you that subsequent to information regarding stakeholder which you had provided to us on 4^th May 2022 we are in the process of finalizing the scheme and expect to submit the same in a day or two. This is to keep you posted that whole going through the list of claim which you had provided on 4^th May 2022 we have observed repetition of certain claims therefore requesting you to kindly review the same once again and provide the revised claim sheet. Thank you and look forward to hearing from you. ……”

“…… 10. Considering this fact, we do not find any merit to intervene as of now as the object of maximization of value of assets can be achieved during the liquidation process also. We also make it clear that the Liquidator shall act with a view to maximize the value of the corporate debtor and in case the value offer is found to be below the value offered made by the applicant herein, the auction process may be reinitiated. …”

"13.

Therefore, it is clear that during the liquidation process, step required to be taken for its revival and continuance of the 'Corporate Debtor' by protecting the 'Corporate Debtor' from its management and from a death by liquidation. Thus, the steps which are required to be taken are as follows:

i.

By compromise or arrangement with the creditors, or class of creditors or members or class of members in terms of Section 230 of the Companies Act, 2013.

ii.

On failure, the liquidator is required to take step to sell the business of the 'Corporate Debtor' as going concern in its totality along with the employees."

In view of the observations aforesaid, we hold that the liquidator is required to act in terms of the aforesaid directions of the Appellate Tribunal and take steps under Section 230 of the Companies Act. If the members or the 'Corporate Debtor' or the 'creditors' or a class of creditors like 'Financial Creditor' or 'Operational Creditor' approach the company through the liquidator for compromise or arrangement by making proposal of payment to all the creditor(s), the Liquidator on behalf of the company will move an application under Section 230 of the Companies Act, 2013 before the Adjudicating Authority i.e. National Company Law Tribunal, Chennai Bench, in terms of the observations as made in above. On failure, as observed above, steps should be taken for outright sale of the 'Corporate Debtor' so as to enable the employees to continue."

FINDINGS AND ORDER

As per Regulation, 2B Compromise or Arrangement of IBBI (Liquidation Process) Regulations, 2016

2B. (1) Where a compromise or arrangement is proposed under section 230 of the Companies Act, 2013 (18 of 2013), it shall be completed within ninety days of the order of liquidation under section 33.

Provided that a person, who is not eligible under the Code to submit a resolution plan for insolvency resolution of the corporate debtor, shall not be a party in any manner to such compromise or arrangement.]

Provided further that where the recommendation to explore proposal of compromise or arrangement has been made by the committee under regulation 39BA of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the liquidator shall file the proposal within thirty days of the order of liquidation.]

(2)

The time taken on compromise or arrangement, not exceeding ninety days, shall not be included in the liquidation period.

order that “…. Liquidator, being duty bound to proceed in accordance with the provisions of IBC and Liquidation Process Regulations when the purported scheme was not submitted in three weeks, acted quite appropriately and in consonance with the provisions of law by issuing the auction notice dated 19.5.2022 which was published in newspapers on 20.5.2022. The submission of the said scheme by the Appellant on 24.5.2022 after a delay of twenty days and the filing of IA No. 154/2022 on 25.5.2022, should therefore, be viewed in this context. The order of the Adjudicating Authority dated 1.6.2022 in IA 154/2022, whereafter a fresh auction notice was published by the Liquidator are also events that follow the correct course as stipulated in the liquidation process of the corporate debtor. …….”

“I.A. (Dy.) No.27202/2023 and I.A. (Dy.) No. 27204/2023 Applications are taken on board.

Learned counsel for the applicant urges that he did not participated in the auction because somehow he missed out on the auction but he is willing to pay more. There is hardly a reason for the applicant to intervene.

Applications stand dismissed.

I.A. No.26569/2023 and I.A. No. 26573/2023

These applications are by the home buyers who claim that the process is carried out in a hurry therefore the actual price is not being realized. Once the process is followed, such kind of endeavours will only prolong the matter and go contrary to the very objective of the Insolvency and Bankruptcy Code, 2016 (IBC). Applications stand dismissed.

Learned counsel for the appellant states that the appellant has not been able to raise the amount of Rs.12.48 crores but has got a draft of Rs.3,00,00,000/-. Despite this we have heard learned counsel for the appellant. The bottom line is that 12.48 crores haven not been brought as assured on the last date. The civil appeal stands dismissed accordingly.”