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Judgment
O R D E R
Per P. Mohan Raj, Member, (Judicial)
This Application is filed by the Liquidator seeking an order of dissolution of corporate debtor Under section 54 of IBC 2016 R/w Regulation 45 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulation 2016.
The Insolvency Proceeding initiated against the corporate debtor by the operational creditor under Section 9 of IBC 2016, in TP (IB)163/CTB/2019 formerly CP(IB)No.389/KB/2018 was admitted by Kolkata Bench on 10.07.2018 Mr. Anand Chandra swain was appointed as IRP, he was not appointed as RP. COC (State Bank of India) was not willing to persue CIRP process hence not approved IRP as RP. The IRP after rejecting the claim of financial creditors, recommended for liquidation. The sole COC Member State Bank of India knowing that there is nothing to recover abandoned CIRP Process and not confirmed IRP as RP.
On 08.01.2019 Liquidation was ordered and Mr. Kailash Kumar Rathi, appointed as Liquidator, when he declined to accept his appointment as Liquidator, the petitioner Mr. Chaitanya Kumar Ray was appointed as liquidator on 23.01.2019.
The Learned Liquidator had taken necessary steps as prescribed under the IBC and Liquidated Regulations. He made public announcement on 20.02.2019 in Form B. He filed I.A.No.182 of/CB/2019 against the erstwhile Directors of corporate debtor under section 35(1)(n) of IBC 2016 for direction directing the erstwhile director of corporate debtor to hand over all the assets, property, books of accounts etc. The petitioner also filed I.A.No.13/CB/2021 under Section 66(1) of IBC 2016 against the erstwhile directors of the corporate debtor for fraudulent transactions. The said application was dismissed on 10.02.2022. The liquidator has only documents of latest audited report up to 31.03.2014 and only bank statement from 01.04.2014 onwards, these documents are not enough to establish the fraudulent transactions of the erstwhile directors of corporate debtor and also to proceed under sections 43,45,47,49 and 50 IBC 2016.
During the period of liquidation M/s Concept Management Consulting Limited one of the unsecured financial creditors submitted compromise proposal under section 230 of Companies Act 2013 as per the order of NCLAT dated 22.05.2022. The compromise proposal was not accepted by COC and this Adjudicating Authority also rejected the said compromise proposal in I.A.No.88/CB/2022 by order dated 10.05.2022. The liquidation period was lastly extended till 15.08.2022 by order dated12.05.2022 passed in I.A.No.125/CB/2022.
The petitioner/liquidator stated that the corporate debtor has closed the business in the year 2015, there is no tangible assets for sale, IRP also found no tangible assets. The liquidator not appointed any valuer due to non-availability of any assets. The creditors also not willing to bear the liquidation cost, hence the liquidator opined that it is fit case for dissolution accordingly this petition is filed.
The petitioner stated that due to non-co-operation of corporate debtor, creditors, non-availability of latest accounts books, assets and lack of funds and because of Covid 19 the liquidation process could not be completed in time. The liquidator opined that even the cost of liquidation process incurred till date cannot be recovered. It is also reported that there is insufficient fund to cover the cost of liquidation process and further investigation on the affairs of the corporate debtor involves huge cost. The liquidator further opines that the chances of realisation of money for payment of operational Creditor and cost of Liquidation process are remote.
After heard the petition and reserved for orders, the erstwhile directors of the corporate debtor filed intervene petition and oppose the dissolution application stating that the liquidator failed to secure the assets of the corporate debtor. It is stated that the erstwhile directors of the corporate debtor responded to the communication of liquidator and submitted the details of receivables by e-mail dated 29.01.2021, and wants to proceed against the said receivables. The receivables attached by State Bank of India mentioned by the intervenors in their e-mail is M/s Mahashakti Energy Ltd and M/s Sterling and Wilson Private Ltd. The liquidator expressed that for all these days the erstwhile directors of corporate debtor not cooperated for liquidation proceeding, the said e-mail communication was sent by the intervenor when he filed application I.A.No.182 of/CB/2019 for direction against the erstwhile directors of corporate debtors to cooperate to the liquidation proceedings. After the said e-mail the intervenor till now not furnished any details to proceed further. The intervenor now only to drag the proceeding opposed the dissolution application. The liquidator said due to non-cooperation of creditors there is no fund available to proceed with liquidation, there is no tangible assets available to recover the for distribution.
When the proposal for compromise with onerous clause to relinquish the claim over Personal guarantor is rejected by COC and this Adjudicating Authority, in order to delay the matter, The intervenors opposed this application.
The liquidator filed this application along with final report and H form as provided under Regulation 45 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulation 2016.
Once the assets of the corporate debtor have been completely liquidated and the liquidator filed an application for liquidation the same shall be accepted by the Adjudicating Authority. In this Hon’ble NCLAT held in Sudhir Kumar Goel and Anr vs M/S Shashi Oils and Fats Pvt. Ltd.on 4 August, 2022 as follows:
(vi)In view of provisions contained in Section 54 of the IBC, once after the completion of liquidation an application is filed by the liquidator of a Corporate Debtor for its dissolution to the Adjudicating Authority, who has no option but to pass an order of dissolution. In the present case the Adjudicating Authority has simply complied with the provisions under Section 54(2) of the Code.
In the circumstances it is just and equitable case of a corporate debtor to be dissolved as provided under section 54 IBC 2016 R/w Regulation 45 of the Insolvency and bankruptcy Board of India (Liquidation Process) Regulation 2016, accordingly the corporate debtor stood dissolved from the date of this order.
In the result the corporate debtor M/s. Powercon Projects & Associations Limited is dissolved from the date of this order. Thus, the Application is ALLOWED.
The copy of this order of dissolution shall be forwarded to ROC Cuttack, Odisha within seven days from to-day as provided under section 54(3) of IBC 2016.
The Registry is directed to send e-mail copies of the order forthwith to all the parties and their Ld. Counsel for information and for taking necessary steps,
Certified Copy of this order may be issued, if applied for, upon compliance of all requisite formalities.