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Judgment
The above application I.A. No. 240/2023 is filed by Resolution Professional, Mr. Pramod Kumar Dokania (hereinafter referred to as the “Applicant”) seeking liquidation of Lavasa Hotel Ltd. (hereinafter referred to as the “Corporate Debtor”) under Section 33(3) of the Insolvency and Bankruptcy Code, 2016 (hereinafter called as “the Code”), praying for the following reliefs:
a. To pass order of liquidation of the Corporate Debtor in the manner laid in chapter III; and/or
b. To pass appropriate orders for appointment of the applicant as the Liquidator for Corporate Debtor; and / or
c. To pass an order to issue a public Announcement stating that the corporate is in liquidation.
d. To pass Any such order and or other further relief as the Hon'ble Tribunal deems fit and Proper in interest of justice.
The brief facts of the application are as follows:
A. The present Application has been filed by, Mr. Pramod Kumar Dokania the Resolution Professional of Lavasa Hotel Limited.. ("Corporate Debtor") under Section 33(3) of the Insolvency and Bankruptcy code, 2016 ("the code"), in order to bring to the kind notice of this Hon'ble Tribunal that the Committee of Creditors ("COC") of the Corporate Debtor, which consists of the financial creditor, has resolved to liquidate the Corporate Debtor. B. On 6.09.2022 this Bench vide its order admitted the Corporate Debtor into CIRP and the Applicant was appointed as Interim Resolution professional (IRP) C. IRP/Applicant visited the hotel premises of the Corporate Debtor on 04.10.2022 and also 14.10.2022. Hotel was close, power was permanently disconnected by MSEDCL, there were water logging in basement of the premises due to which finance room was not accessible, also rooms of the hotels were locked due to no power and no access card availability. Hence IRP in discussion with representative from Lavasa corporation Ltd who had the custody of the building earlier took a joint custody of the building since the building of the hotel is owned by the Parent entity Lavasa Corporation Ltd. A spot Panchnama was done to this effect on 14.10.2022.
D. The Applicant further states IRP informed RP of Lavasa Corporation Ltd (Respondent) about the joint custody and shared copy of spot Panchnama with the email intimating RP about the facts and seeking his support. E. Further on Public Announcement made, the IRP received claims and collated all the claims and finalized a list of Creditors on 23.12.2022 and also formed and Committee of Creditor. Further on 11.12.2022 the list of creditors was later revised based on updated claims. F. On 01.11.2022, in the first meeting of the Committee of Creditors (hereinafter referred to as the “CoC”) it was resolved that IRP will be continued as Resolution Professional of the Corporate Debtor. G. On 05.12.2022, Form G was Published in Free Press Journal in English and Navakal (Marathi) in Mumbai and Financial Express (English) & Loksatta (Marathi) in Pune, with a last date to submit EOI being 20.12.2022. H. Further that RP/Applicant did not receive any EOI by the last date of submission of EOI i.e till 20.12.2022.
I. On 23.12.2022 in the 3rd CoC Meeting conducted by the RP/Applicant with 100% voting of the CoC concluded to liquidate the Corporate persons. J. Further that the RP/Applicant Mr. Pramod Kumar Dokania as the liquidator of the corporate debtor. The CoC also decided on the fee payable as per regulation 39(D) and 80% as per the Fee prescribed under regulation 4(2)(b) of IBBI (Liquidation Process) regulation 2016 to the liquidator. Further RP/Applicant has submitted consent in Form-A to the committee to act as Liquidator of the corporate debtor.
K. The Applicant further stated that in 3rd CoC meeting, the CoC members have decided to file application before this Bench for liquidation of the Corporate Debtor under Section 33 of Code and the Rules Regulation made thereunder. It is further submitted that the CoC has ratified the expenses incurred by the RP, decided the fees payable to the Liquidator as per Regulation 4 of the Liquidation Regulations, and has approved the plan for meeting the estimated liquidation costs as per Regulation 39B of the CIRP Regulations. Further, the CoC has resolved and recommended that the liquidator shall explore sale of the Corporate Debtor as a going concern under clause (e) of Regulation 32 of the Liquidation Regulations or sale of the business of the Corporate Debtor as a going concern under clause (f) thereof, if an order for liquidation is passed under Section 33 of the Code. L. In the 3rd CoC Meeting the members, held on 23.12.2022 decided to unanimously opt for Liquidation. The relevant extract of the resolution is reproduced herein below for ready reference:-
“RESOLUTION 1: It is hereby resolved that corporate debtor M/s Lavasa Hotel Limited be Liquidated as per section 33(2) of The Insolvency and Bankruptcy Code, 2016 and make an application with AA to pass a liquidation order as referred in section 33(1)(b) clause (i), (ii) and (iii).
“RESOLUTION 3: It is hereby Resolved that RP to act as Liquidator as per consent given by the RP and fee of liquidator as per regulation 39(D) and as per Fee prescribed under regulation 4(2)(b) of IBBI (Liquidation Process) regulation 2016.
The above resolution was put to vote and passed with 100% majority of the CoC members as prescribed under Section 33(2) of the Code. The Applicant has also provided his Written Consent dated 25.12.2022 to act as a Liquidator of the Corporate Debtor.
After hearing the submissions made by the Counsel appearing for the Applicant and upon perusing the material available on record, it is observed from the minutes of the 3rd CoC meeting that the CoC has unanimously decided to liquidate the Corporate Debtor. This bench, therefore allows the above Interlocutory Application Number 240 of 2023 and passed the following:
ORDER
The above I.A. No. 240/2023 is Allowed, and the Corporate Debtor Lavasa Hotel Ltd. is ordered to be liquidated as going concern.
a. Mr. Pramod Kumar Dokania (IP Registration No. IBBI/IPA-001/IP-P-01994/2020-2021/13062 is hereby appointed as the Liquidator as provided under Section 34(1) of the Code.
b. That the Liquidator for the conduct of Liquidation proceedings would be entitled to a remuneration according to Liquidation fees (B) As per Regulation 4 of the IBBI (Liquidation Process) Regulation 2016.
c. The Liquidator appointed in this case to initiate liquidation process as envisaged under Chapter-III of the Code by following the liquidation process given in the Insolvency & Bankruptcy Board of India (Liquidation Process) Regulations, 2016.
d. The Liquidator appointed under section 34(1) of the Code. Will have all powers of the board of directors, key managerial personnel and the partners of the Corporate Debtor, as the case may be, shall cease to have effect and shall be vested with the liquidator.
e. That the Corporate Debtor to be liquidated in the manner as laid down in the Chapter by issuing Public Notice stating that the Corporate Debtor is in liquidation with a direction to the Liquidator to send this order to the ROC under which this Company has been registered.
f. All the powers of the Board of Directors, key managerial persons, the partners of the Corporate Debtor hereafter ceased to exist. All these powers henceforth vest with the Liquidator.
g. That the personnel of the Corporate Debtor are directed to extend all co-operation to the Liquidator as required by him in managing the liquidation process of the Corporate Debtor.
h. That on having liquidation process initiated, subject to Section 52 of the Code, no suit or other legal proceeding shall be instituted by or against the Corporate Debtor save and except the liberty to the liquidator to institute suit or other legal proceeding on behalf of the Corporate Debtor with prior approval of this Adjudicating Authority.
This liquidation order shall be deemed to be a notice of discharge to the officers, employees and workmen of the Corporate Debtor except to the extent of the business of the Corporate Debtor continued during the liquidation process by the Liquidator.
j. Registry is directed to communicate this order to the Liquidator.
With the above directions, this application i.e. I.A. No. 240 of 2023 is hereby allowed and disposed of.