Consortium Of Suzlon Synthetic Ltd. & Anr. vs Reshma Mittal

O R D E R

“I.A. No. 642 of 2021

The Orders dated 27.08.2020 are not implemented by the successful resolution applicant even though one year period is already over. The RP represents that not a single penny has been paid by the successful resolution applicant after the approval of the resolution plan. In view of the same the earnest money deposited/paid by the successful resolution applicant shall be forfeited and before proceeding for the liquidation of the company. Any viable plan that is submitted for due consideration of this bench would be heard and only after that appropriate decision will be taken. In so far as the resolution plain is concerned the same is set aside in view of efflux of time.

List all the I.A’s for consideration on 16.07.2021.”

“I.A. No. 5985 of 2021

This is an application filed by prospective resolution applicant for seeking following reliefs:

a. Allow the resolution plan dated 23.10.2021 submitted by the Applicant with the RP/Respondent No. 1 of the CD to be placed before the CoC for its consideration;

b. Extend the time period for completion of CIRP of the Corporate Debtor by 90 days or such time period as this Hon’ble Tribunal may deem fit; or in the alternate issue appropriate directions to the RP and/or the CoC, as the case may be, for the purposes of preferring an application for seeking extension of time limit as may be required;

c. Direct the liquidation application under Section 33 of the Code to be kept in abeyance till consideration of the resolution plan filed by the Applicant;

d. Pass any other such reliefs this Hon’ble Tribunal may deem fit in the facts and circumstances of the present case.”

This application is filed for seeking to submit a plan on the basis of observation made by this Tribunal on 01.07.2021. However, Ms. Reshma Mittal, Chairperson of Monitoring Committee failed to inform the Tribunal that on 29.05.2021, the meeting of the Monitoring Committee had already taken a decision to go for liquidation of the corporate Debtor as a going concern and if those proceedings had been brought to the notice of the Tribunal, such order would not be passed and therefore, on account of her dereliction of duty of not bringing the decision of Monitoring Committee regarding liquidation of CD as a going concern to the attention of the Bench, no relief can be granted in this application on an observation made by the Bench that any plan can be submitted to the Bench. The Provisions of Section 33(3) of IBC mandate the further proceedings on rejection of approved plan. In view of above, the present application is disposed off with liberty to applicant to participate in the further proceedings in accordance with law.

“I.A. No. 1151 of 2022

This is an application filed by Bharat Sharma for seeking following reliefs:

a. Allow the present application; and

b. Issue appropriate direction to the Respondent/RP to forthwith convene a meeting of the Committee of Creditors and place the Applicant’s Resolution Plan submitted on 23.10.2021 before the CoC for its consideration in terms of the provisions of the Code for resolution of the Corporate Debtor;

c. Pass such other order as this Hon’ble Adjudicating Authority may deem fit and proper in the facts and circumstances of the instant case.

This applicant was earlier a joint proponent of a resolution plan in the CIRP proceedings which was approved by the CoC. The Plan was approved by the Adjudicating Authority but later rejected on account of non-implementation and set aside by order dated 01.07.2021. The present application is filed by Bharat Sharma, who is one of the two proponents of the earlier plan. In this situation, since we have already passed order in I.A-2479 of 2021, the applicant is entitled to participate in the Liquidation process. Since the applicant has abandoned the earlier plan, his participation will be subject to such objection as may be permissible in law.

Accordingly, I.A. No. 1151 of 2022 stands disposed off.”

“31.10.2022: This Appeal has been filed challenging the Order dated 26th August, 2022 passed by the National Company Law Tribunal, Principal Bench, New Delhi. By which Order, the Adjudicating Authority has allowed the Application I.A. No. 2479/2021 filed by the Chairperson, Monitoring Committee and has rejected Application I.A. No. 1151/2021 filed by the Appellant-Bharat Sharma- Resolution Applicant where direction was sought to the Respondent-Resolution Professional to convene the meeting of the Committee of Creditors to place the Resolution Plan for consideration submitted by the Applicant on 23rd October, 2021.

2.

In the Corporate Insolvency Resolution Process of the Corporate Debtor, the Resolution Plan was submitted by the Appellant jointly with another Resolution Applicant which was ultimately approved but could not be implemented and stood cancelled by Order dated 1st July, 2021. In the Order dated 1st July, 2021, the Adjudicating Authority has made observations that any viable plan that is submitted, can be placed for consideration before the Liquidation. It appears that on 29th May, 2021, the Monitoring Committee has also resolved to go for liquidation which fact was not brought before the Adjudicating Authority on 1st July, 2021. In pursuance of the Monitoring Committee Resolution dated 29th May, 2021, Application was filed for liquidation which has been allowed by the Impugned Order.

3.

Mr. Abhishek Anand, Learned Counsel for the Appellant submits that the Appellant-Corporate Debtor being MSME an opportunity ought to have been given for placing Resolution Plan submitted by the Appellant for consideration which has wrongly been rejected. It is alternatively submitted that under Regulation 2B of Insolvency and Bankruptcy Board of India (Liquidation Process), Regulations, 2016, the Appellant ought to have been given opportunity to submit a scheme of compromise/arrangement but the Liquidator proceeded for auction without giving any opportunity.

4.

Learned Counsel for the Liquidator opposing the submissions of Learned Counsel for the Appellant contends that the Plan having been failed to be implemented by the Appellant who was joint applicants, there was no option except to direct for liquidation which has been directed by the Impugned Order. It is submitted that in pursuance of the Impugned Order, notice for auction has already been issued and large number of Applicants have submitted their EMD.

5.

We have heard the Learned Counsel for the parties and have perused the record. In the facts of the present case, we are of the view that ends of justice will be served in giving liberty to the Appellant to submit a scheme of compromise/arrangement as contemplated under Section 230 of the Companies Act to the Liquidator within one month from today as well as to the Financial Creditors for their approval as contemplated under Section 230 of the Companies Act. Let entire process be completed within three months’ period as has been allowed under Regulation 2B of the IBBI (Liquidation Process) Regulations, 2016 from today. The Liquidator who has already issued notice fixing Auction on 10th November, 2022, shall differ the proposed auction. It will be open for the Liquidator to proceed with the Auction further, if any, only after completion of the process under Regulation 2B of the IBBI (Liquidation Process) Regulations, 2016 after period of 3 months. The Appeal stands disposed of, with the aforesaid direction(s).”