CA U V Sujatha vs The Committee Of Creditors Of Shaan Technologies Private Limited & Anr.

Per: SAMEER KAKAR, MEMBER (TECHNICAL)

IA(IBC)/480(CHE)/2022 is an Application filed by the Resolution Professional of the Corporate Debtor under Section 60(5) read with 33(2) of IBC, 2016 seeking relief as follows;

It was submitted that this Tribunal on an Application filed under Section 9 of IBC, 2016 vide its order dated 23.12.2020 initiated the Corporate Insolvency Resolution Process (CIRP) as against the Corporate Debtor viz. M/s. Shaan Technologies India Private Limited and appointed the Applicant herein as the Interim Resolution Professional.

It was submitted that the Applicant immediately on his appointment made a public announcement in Form A on 27.12.2020 in English Daily "The New Indian Express" and in Tamil Daily "Dina Thanthi" and fixed the last date for submission of Claims on 06.01.2021.

It was submitted that no claims were received from any Financial Creditors and the Committee of Creditors comprised of the sole Operational Creditor. The Learned Counsel for the Applicant submitted that from the initiation of CIRP there was complete non-cooperation from the suspended management of the Corporate Debtor and the Applicant has sent several emails to the suspended management of the Corporate Debtor requesting them to provide all required documents, information and records of the Corporate Debtor. However, nothing turned fruitful.

It was submitted that the Applicant had filed an Application viz. IA/483/2021 under Section 19(2) of IBC, 2016 against the suspended directors of the Corporate Debtor before Hon'ble Tribunal and this Tribunal vide order dated 06.12.2021 allowed the said Application and directed the respondents therein to co-operate with the Applicant and to submit all records and documents requested for within 10 days. However, it was submitted that the suspended directors in complete disregard to the order of this Tribunal failed to handover the documents and records of the Corporate Debtor. It was further submitted that in contravention to the provision of the Code, the suspended management proceeded to finalize financial statement for the FY 2019 2020. Further, from the MCA site it is evident that the financial statements of the Corporate Debtor were filed with the ROC. The suspended management of the Corporate Debtor deliberately proceeded to finalize the accounts of the Corporate Debtor without the knowledge of the Applicant RP and the CoC.

It was submitted that in the COC meeting held on 28.02.2022, the suspended director, Mr. Shanmugam, agreed to settle the dues of the sole operational creditor and the CIRP cost of the Corporate Debtor. However, no settlement/ resolution plan was submitted by Mr. Shanmugam till date. Further, it was submitted that in the first COC Meeting the sole COC member chose neither to replace the IRP with new RP nor chose to confirm the appointment of RP. After repeated requests to comply with the statutory mandate and after the expiry of 330 days of CIRP period, the COC in its 5^th Meeting held on 15.03.2022 confirmed the appointment of the Applicant as the RP of the Corporate Debtor. Even in the said meeting the remuneration payable to the Applicant RP was deliberately not confirmed by the COC.

It was submitted that the Applicant appraised the COC about the completion of 330 days of CIRP and recommended the further course of action that is required to be taken. However, the sole operational creditor conveyed its inability to fund the CIRP cost and chose not to take any firm decision with respect to the further course of action.

Thus, it was submitted that the 330 days CIRP period already expired on 18.11.2021 and the Applicant RP did not receive any settlement proposal or resolution plan for the revival of the Corporate Debtor. Further, neither the suspended management or the COC is co-operating with the Applicant RP in carrying out the CIRP. Even after repeated requests the remuneration of the RP neither confirmed by the COC nor paid. In view of the above facts and circumstances, the Applicant prayed for liquidation of the Corporate Debtor be ordered and a liquidator be appointed as the Applicant RP do not want to continue as liquidator of the Corporate Debtor. Further, the Applicant requested that the Respondent be directed to pay the Applicant the remuneration cost of Rs.3,33,200/-.

Heard the submissions made by the Learned Counsel for the Applicant. In the present case as pointed out by the Applicant the 330 day CIRP in respect of the Corporate Debtor came to an end as early as on 18.11.2021 and as such by operation of Section 33(1)(a) of IBC, 2016, the Corporate Debtor is necessarily required to be ordered for liquidation.

Further, it has been brought to our knowledge that the remuneration of the Applicant and other CIRP Cost has not been paid. Under the said circumstances, we hereby direct the 1st Respondent to pay a sum of Rs.3,33,200/- to the Applicant within a period of 15 days from the date of this order failing which, contempt proceedings will be initiated as against the 1st Respondent.

In so far as prayer (b) is concerned, the Applicant has not given her written consent to act as the Liquidator. In the said circumstances, from the latest list provided by IBBI for the period from January 2022 till June 2022 we hereby appoint Mr. T Charan Kumar Reddy with Reg No. IBBI/IPA-001/IP-P02596/2021-2022/13955 (email id: [email protected]) as the Liquidator of the Corporate Debtor to carry out the liquidation process subject to the following terms of the directions.

Accordingly, IA(IBC)/480(CHE)/2022 stands disposed of.

For compliance of directions given under 10 above and the matter is posted on 18.07.2022.