APPL Industries Limited vs Auto Decor Private Limited

IA-1178/2021:

IA/3112/2021:

PRAYER

In view of above said facts and circumstances, it is prayed most respectfully to this Hon'ble Tribunal to provide declare that:

(i)

In the interest of all the Stakeholders, Final Report submitted by the Liquidator may be taken on record and accordingly liquidation proceedings against Autodecor Pvt. Ltd may be concluded under regulation 32(e) of IBBI (Liquidation Process) Regulations, 2016 by including name of the Acquirer(s)/ Successful Bidder and new management in the order;

(ii)

The Acquirers / Successful Bidder have taken the control of the Corporate Debtor from 31st January 2020 (date of Acquisition) and the new management has taken over the company from that day onwards;

(iii)

All outstanding liabilities, dues payable, action against the company prior to the date of acquisition shall be extinguished in terms of Section 32A of the Code and the Acquirer(s) and new management have started the operations from clean slate;

(iv)

All liabilities against Corporate Debtor from any creditor being Secured, Unsecured, Operational, Statutory, Interest/Penalty/fee arisen or due to the acts done prior to (31^{\text{st}}) January 2020, whether claimed, unclaimed, contingent, crystallized, left unpaid under Section 53 shall stand permanently extinguished;

(v)

For the clarity of all the Stakeholders, it humbly prayed to incorporate pay-outs due and made to Stakeholders as per Section 53 of the Code by the Ld. Liquidator against the respective claims;

(vi)

All the compliances for the period up to the Date of Acquisition including filing of necessary documents and returns with the Registrar of Companies, Income Tax Authorities and any related fine or penalties be waived off;

(vii)

For the past events upto 31/1/2020, the Acquirer(s) or New Management does not require to seek Permissions, NOCs, No Dues Certificates etc. from any statutory authority or department including but not limited to new claims from ROC, Income Tax, Goods & Service Tax, Customs Duty, Value Added Tax, Service Tax, Wealth Tax, Cess, Provident Fund, ESI, Electricity (DHBVN) & Water, HSIIDC etc. in accordance with provisions of Section 32A and Section 238 of the Code.

(viii)

All inquiries, investigations, assessments, notices, cause of action, suits, claims, disputes, litigations, arbitrations or other judicial, regulatory or administrative proceedings against, or in relation to, or in connection with the Corporate Debtor or the affairs of the Corporate Debtor (other than against the erstwhile promoters of former member of the management of the Corporate Debtor) pending or threatened, present or future in relation to any period prior to the Date of Acquisition shall be deemed to be withdrawn or disposed or dismissed;

(ix)

Any non-compliance of provisions of any laws, rules and regulations, directions, notifications, circulars, guidelines, policies, licenses, approvals, consents or permissions prior to the Date of Acquisition shall be deemed to be extinguished;

(x)

All pending charges against the Corporate Debtor in the records of Registrar of Companies, outstanding as on the Date of Acquisition, be closed and satisfied upon treatment given by Ld. Liquidator u/s 53 of IBC, 2016;

(xi)

The Corporate Debtor shall have a right to review and terminate any contract that was entered into prior to the date of the Liquidation Order;

(xii)

All subsisting consents, licence, approvals, rights, entitlements, benefits and privileges whether under the law of Contract, Lease or Licence, granted in favour of Corporate Debtor or to which the Corporate Debtor is entitled to shall, notwithstanding any provisions of the contrary in their terms and irrespective of the commencement of the insolvency/liquidation proceedings under the Code, in relation to the Corporate Debtor, be deemed to continue without disruption, for the benefit of the Corporate Debtor and all additional licences, registrations and consents required by the Corporate Debtor be made available immediately from the Date of Acquisition;

(xiii)

To pass any other or further order(s) which this Hon'ble Tribunal may deem fit and proper in the interest of justice.

14.

That on 20.02.2020, the new Acquirer(s) / Successful Bidder / New Shareholders signed an acquisition agreement with the liquidator detailing the terms and conditions of the transfer as per Regulation 32E of IBBI (Liquidation Process) Regulation, 2016. This acquisition agreement covered all the relevant intent of IBC, 2016 and related Liquidation Regulations i.e.

a)

Immunity to the Acquirer(s) shall be provided as per Section 32A of the Code against any prior dues, defaults, offences Non Compliances Committed by the previous management.

b)

In case of any inconsistencies with any other law for the time being in force, provisions under IBC shall prevail as per Section 238 of the Code.

c)

All the liabilities whether claimed or not including equity share capital of the company shall be paid/treated as per Section 53 of the Code.

d)

The transfer of Corporate Debtor is as per Regulation 32E of (Liquidation Process) Regulation, 2016.

IA/1178/2021:

FORM II

COMPLIANCE CERTIFICATE

[Under Regulation 45(3) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016]

I, Sanjeev Ahuja, an insolvency professional enrolled with ICSI – IPA and registered with the Board with registration number IIBII/IPA/002/IP-N00028/2016-17/10061, am the Liquidator for the Liquidation Process of Autodecor Private Limited (CD)

2 The details of the Liquidation Process are as under

SLNo	Particulars	Description
1.	Name of the corporate debtor	Autodecor Private Limited
2.	Case No. & NCLT Bench	NCLT Delhi, Court – II Case No. – IB-530 (ND) 2018
3.	Date of initiation of liquidation	19th June 2019 (Order dated 4th June 2019 was uploaded on the official website of NCLT on 19th June 2019)
4.	Date of appointment of liquidator	19th June 2019
5.	Date of commencement of CIRP	2nd August 2018
6.	Name of RP during CIRP and his registration No. as IP	Arun Jain (till 31.1.2019) IBBII/ Sanjeev Ahuja (from 1.2.2019) IBBII/IPA/002/IP-N00028/2016-17/10061
7.	Name of Liquidator and his registration No. as IP	Sanjeev Ahuja IBBII/IPA/002/IP-N00028/2016-17/10061
8.	Date of Publication of Public Announcement under Form II	21st June 2019
9.	Date of Intimation to Registry and Information Utility, if any, about commencement of Liquidation	-
10.	Date of handover of charge by RP	19th June 2019
11.	Date of submission of compliance, if any, directed by AA in the liquidation order and its particulars	-
12.	Date of appointment of registered valuers, if any	-
13.	Date of notice for uncalled capital/unpaid capital contribution	NA
14.	Date of realisation of uncalled capital/unpaid capital contribution	NA
15.	Date of opening of liquidation account with Bank A/c details	Date – 23/07/2019 State Bank of India A/C Number – 38583131164
16.	Date of constitution of Consultation Committee	12th August 2019

17.	No. of meetings of consultation committee held	1
18.	Date of submission of list of stakeholders to AA	14th August 2019
19.	Date of public announcement of list of stakeholders	20th August 2019
20.	Date of filing of preliminary report & assets memorandum to AA	14th August 2019
21.	Fair value	182,500,867
22.	Liquidation value	150,901,334
23.	Date of public announcement for auction (please add additional rows, if required)	Liquidation was concluded through sale of Corporate Debtor as a Going Concern under Regulation 32 (e). Expression of Interest for sale of Corporate Debtor as a Going Concern under Regulation 32 (e) was given on 1st November 2019.
24.	Date of order of AA to dispense with the public announcement for Auction	NA
25.	Date of permission of AA for physical Auction	NA
26.	Date of permission of AA for private sale	NA
27.	Date of permission of AA for distribution of unsold assets to stakeholders	NA
28.	Date of permission of the liquidator to realise the un-relinquished security interest by the secured creditor	NA
29.	Modified list of stakeholders and date of submission to AA	Addition of Claim from GST Department received on 4th October 2019 Informed through Progress Report dated 14th October 2019
30.	Date of first realization	5th November 2019
31.	Date of Final realization	7th January 2020
32.	Date of first distribution	10th February 2020
33.	Date of second distribution	-
34.	Date of submission of Quarterly Progress Report-I (FY-1)	10th July 2019
35.	Date of submission of Asset Sales Report to AA	NA
36.	Date of submission of Quarterly Progress Report-II	14th October 2019
37.	Date of submission of Quarterly Progress Report-III	31st December 2019

38	Date of submission of Quarterly Progress Report-IV & Audit Report	NA
39	Date of submission of Quarterly Progress Report-I (FY-2)	NA
40	Date of submission of Quarterly Progress Report-II	NA
41	Date of submission of Quarterly Progress Report-III	NA
42	Date of submission of Quarterly Progress Report-IV & Audit Report	NA
43	Date of intimation to statutory authority as applicable. a) PF b) ESI c) Income Tax Dept d) Inspector of Factory e) GST/VAT f) Others	ROC- Delhi 30th June 2019 Ministry Corporate Affairs 30th June 2019 Income Tax 30th June 2019 GST 30th June 2019 PF 31st August 2019 DHBVN (Electricity Board) 17th September 2019 HSIDC (Water) 17th September 2019 HSIDC (Estate) 17th September 2019
44	Date of application to AA as per Reg 46(1)	NA
45	Date of transfer of undistributed/unclaimed assets or proceeds of liquidation to public Account of India	03-Mar-20
46	Date of intimation as per Reg 46(1)	07-Mar-20
47	Date of Final Report to AA (prior to dissolution application)	09-Mar-20 The Liquidation process has concluded through transfer of Corporate Debtor as a 'Going Concern'. Hence Corporate Debtor will not get dissolved

3.

The details of the assets as per Asset Memorandum and Final Sale Report are as under;

Sl No	Assets	Mode of Sale	Estimated Liquidation Value	Realisation Amount (Rs.)	Date of Transfer to Liquidation Account
1.	Plot No 07, Udyog Vihar Industrial Area, Phase-1, Gurgaon-Haryana	Transfer as a whole as per Regulation 32(e)	28,873,480	Refer Note-1	Refer Note-2
2.	Plot No 08, Udyog Vihar Industrial Area,	Transfer as a whole as per	29,645,980	Refer Note-1	Refer Note-2

	Phase-1, Gurgaon-Haryana	Regulation 32(e)
3.	Plot No 469, 470, 471 Sector 8, IMT Manesar, Gurgaon, Haryana	Transfer as a whole as per Regulation 32(e)	82,302,799	Refer Note-1	Refer Note-2
4.	Plant and machinery, Gurgaon Plant	Transfer as a whole as per Regulation 32(e)	7,234,640	Refer Note-1	Refer Note-2
5.	Plant and machinery, Rodrapar Plant	Transfer as a whole as per Regulation 32(e)	2,029,643	Refer Note-1	Refer Note-2
6.	Furniture, Fixtures etc. - Manesar Unit	Transfer as a whole as per Regulation 32(e)	1,465,181	Refer Note-1	Refer Note-2
7.	Inventories - Manesar Unit	Transfer as a whole as per Regulation 32(e)	164,402	Refer Note-1	Refer Note-2

Note - 1 The Corporate Debtor has been transferred as Going Concern entity under Regulation 32(e) of IBBI (Liquidation Process) Regulations against a consolidated lump sum amount of Rs.15.51 Crores. Hence Individual amount of Realization can't be put before the Assets

Note - 2 The amount(s) had been received in the Liquidation Account as follows:

Date	Amount Realized
Realizations under Regulation 32(e)
04-Dec-19	100,000
05-Dec-19	2,500,000
17-Dec-19	12,910,000
09-Jan-20	70,000,000
09-Jan-20	60,500,000
Subtotal	155,100,000
Other Realizations
06-Nov-19	112,140.28
21-Nov-19	24,916
17-Jan-20	33,378
17-Jan-20	29,395
Subtotal	199,829
Grand Total	155,299,829

4.

(a) Liquidation Value of Liquidation Estate - 150,901,334

(b)

Amount realized from sale of Liquidation Estate – 155,299,828

(c)

The amounts distributed to stakeholders as per section 52 or 53 of Code are as under

Sl No	Stakeholders* under Section 52(1)	Amount Claimed	Amount Admitted	Amount Distributed	Amount Distributed to the Amount Claimed (%)	Remarks
1.	Financial Creditors	668,882,996	658,462,492	127,971,668	19.43%
2.	Workmen	9,577,616	9,577,616	966,016	10.09%	Amounts for Gratuity and PF were specifically carved out and paid in full to the Workmen and Employees as per Section 36(4)(a)(iii)

* if there are sub categories in a category, please add rows for each sub category

5.

The Liquidation Process has been conducted as per the timeline indicated in regulation 47 as under:

Section of the Code / Regulation No.	Description of Task	Timeline as per regulation 47	Actual Timeline
Section 33 and 34	Commencement of liquidation and appointment of liquidator	19-Jun-19	19-Jun-19
Section 33 (1) (b) (ii) / Reg. 12 (1, 2, 3)	Public announcement in Form B	24-Jun-19	21-Jun-19
Reg. 33 (2)	Appointment of registered valuers	26-Jun-19	-
Section 38 (1) and (3)	Submission of claims;	19-Jul-19	19-Jul-19

Reg 21A	Intimation of decision on relinquishment of security interest	19-Jul-19	04-Oct-19
Section 38 (1)	Withdrawal/ modification of claim	02-Aug-19	-
Reg. 30	Verification of claims received under regulation 12(2)(b)	18-Aug-19	08-Aug-19
Reg. 31A	Constitution of SCC	18-Aug-19	11-Aug-19
Section 40 (2)	Intimation about decision of acceptance/ rejection of claim	25-Aug-19	08-Aug-19
Reg. 31 (2)	Filing the list of stakeholders and announcement to public	02-Sep-19	20-Aug-19
Section 42	Appeal by a creditor against the decision of the liquidator	08-Sep-19	-
Reg. 13	Preliminary report to the AA	02-Sep-19	14-Aug-19
Reg. 34	Asset memorandum	02-Sep-19	14-Aug-19
Reg. 15 (1), (2), (3), (4) and (5), and 36	Submission of progress reports to AA; Asset Sale report to be enclosed with every Progress Report, if sales are made
	Q1	15-Jul-19	10-Jul-19
	Q2	15-Oct-19	14-Oct-19
	Q3	15-Jan-20	31-Dec-19
	Audited accounts of liquidator's receipt & payments for the financial year	15-Apr-20	07-Mar-20
Provise to Reg. 15 (1)	Progress report in case of cessation of liquidator	-	-
Reg. 27 (2, 3)	Information to secured creditors	-	-
Reg. 42 (2)	Distribution of the proceeds to the stakeholders	06-Apr-20	10-Feb-20
Reg. 10 (1)	Application to AA for Disclaimer of onerous property	-	-
Reg. 10 (3)	Notice to persons interested in the onerous property or contract	-	-
Reg. 44	Liquidation of corporate debtor	18-Jun-20	-
Reg. 46	Deposit the amount of unclaimed dividends and undistributed proceeds	07-Mar-20	07-Mar-20
Sub-1 Sl. No 12	Time period to H1 bidder to provide balance sale consideration	-	30 Days

6.

The following are deviations non compliances with the provisions of the Insolvency and Bankruptcy Code, 2016, regulations made, or circulars issued there under If any deviation non compliances were observed, please state the details and reasons for the same

Sl No	Deviation Non - compliance observed	Section of the Code Regulation No Circular No	Reasons	Whether rectified or not

7.

The dissolution application has been filed [before expiry of the period of one year] / [after expiry of one year]. Please state details of any extension sought with the reason and granted: The Liquidation has concluded through transfer of Corporate Debtor as a "Going Concern". Hence Corporate Debtor will not get dissolved

8.

The details of application(s) filed pending in respect of avoidance of transactions

Sl No	Type of Transaction	Date of Filing with Adjudicating Authority	Date of Order of the Adjudicating Authority	Brief of the Order

9.

All undischarged or matters pending before any Court or Tribunal relating to corporate debtor, if any, have been reported to AA

The data/records were not available due to reported theft at the premises of Corporate Debtor, hence no detail of pending suits could be collated or reported to the Adjudicating Authority. The position has been reported to the AA through various reports by earlier IRP/RPI and the undersigned.

10.

I Sanjeev Ahuja, hereby certify that the contents of this certificate are true and correct to the best of my knowledge and belief, and nothing material has been concealed there from

IA/3112/2021:

“32A. (1) Notwithstanding anything to the contrary contained in this Code or any other law for the time being in force, the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease, and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the Adjudicating Authority under section 31, if the resolution plan results in the change in the management or control of the corporate debtor to a person who was not—

(a)

a promoter or in the management or control of the corporate debtor or a related party of such a person; or

(b)

a person with regard to whom the relevant investigating authority has, on the basis of material in its possession, reason to believe that he had abetted or conspired for the commission of the offence, and has submitted or filed a report or a complaint to the relevant statutory authority or Court:

Provided that if a prosecution had been instituted during the corporate insolvency resolution process against such corporate debtor, it shall stand discharged from the date of approval of the resolution plan subject to requirements of this sub-section having been fulfilled:

Provided further that every person who was a “designated partner” as defined in clause (j) of section 2 of the Limited Liability Partnership Act, 2008, or an “officer who is in default”, as defined in clause (60) of section 2 of the Companies Act, 2013, or was in any manner incharge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence as per the report submitted or complaint filed by the investigating authority, shall continue to be liable to be prosecuted and punished for such an offence committed by the corporate debtor notwithstanding that the corporate debtor’s liability has ceased under this sub-section.

(2)

No action shall be taken against the property of the corporate debtor in relation to an offence committed prior to the commencement of the corporate insolvency resolution process of the corporate debtor, where such property is covered under a resolution plan approved by the Adjudicating Authority under section 31, which results in the change in control of the corporate debtor to a person, or sale of liquidation assets under the provisions of Chapter III of Part II of this Code to a person, who was not—

(i)

a promoter or in the management or control of the corporate debtor or a related party of such a person; or

(ii)

a person with regard to whom the relevant investigating authority has, on the basis of material in its possession reason to believe that he had abetted or conspired for the commission of the offence, and has submitted or filed a report or a complaint to the relevant statutory authority or Court.

Explanation.—For the purposes of this sub-section, it is hereby clarified that,—

(i)

an action against the property of the corporate debtor in relation to an offence shall include the attachment, seizure, retention or confiscation of such property under such law as may be applicable to the corporate debtor;

(ii)

nothing in this sub-section shall be construed to bar an action against the property of any person, other than the corporate debtor or a person who has acquired such property through corporate insolvency resolution process or liquidation process under this Code and fulfils the requirements specified in this section, against whom such an action may be taken under such law as may be applicable.

(3)

Subject to the provisions contained in sub-sections (1) and (2), and notwithstanding the immunity given in this section, the corporate debtor and any person who may be required to provide assistance under such law as may be applicable to such corporate debtor or person, shall extend all assistance and co-operation to any authority investigating an offence committed prior to the commencement of the corporate insolvency resolution process.]"