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Judgment
This is an application has been filed by Mr. Navneet Kumar Gupta hereinafter referred to ("Applicant"/"Resolution Professional"), the Resolution Professional of M/s. Alpha Pacific Engineers Private Limited hereinafter referred to as ("Corporate Debtor") seeking commencement of the Liquidation process in respect of the Corporate Debtor under Section 33(2) of the Insolvency and Bankruptcy Code, 2016 pursuant to the decision of the Committee of Creditors ("COC") to liquidate the Corporate Debtor based on the decision taken with 100% voting in 7th CoC meeting held on 10.12.2025. The prayers made in the application read thus:
a. Allow the present Application; and
b. to pass an order for commencement of Liquidation Process of the Corporate Debtor; and
c. to pass an order appointing an Insolvency Professional to act as the Liquidator of the Corporate Debtor as the Applicant has expressed his unwillingness to act as the Liquidator and that the committee of creditor has not recommended name of any Insolvency Professional.
d. pass such appropriate directions and orders as the Hon'ble Adjudicating Authority may deem fit and appropriate in the given facts and circumstances of the case.
Brief facts of the case as stated in the application:
Before delving into the issue of filing this present application, it is pertinent to mention the relevant facts of the case, and the averments made by the applicant, which are extracted as below:
The Corporate Insolvency Resolution Process ("CIRP") of the Corporate Debtor had commenced vide order dated 07.01.2022 ("CIRP Order"). Vide the said order, Mr. Atul Jagnani, the erstwhile Interim Resolution Professional ("Erstwhile IRP") was also appointed.
Since the commencement of the CIRP i.e. 07.01.2022, till 30.08.2024, the Erstwhile IRP did not perform his duties as the communication informing about his appointment was inadvertently skipped from the attention of the Erstwhile IRP. Even when the fact of his appointment came to Erstwhile IRP's knowledge, he did not perform his duties in terms of the provision of the Code. Therefore, at the 3rd meeting of Committee of Creditors ("3rd CoC"), the CoC resolved to replace the Erstwhile IRP with the Applicant (Mr. Navneet Kumar Gupta) with 100% voting.
Pursuant to the passing of resolution for appointment of the Applicant in place of the Erstwhile IRP, an Interlocutory Application No. 1541 of 2025 was filed before the Hon'ble NCLT in terms of Section 22(3)(b) of the Code for replacement of the Erstwhile IRP with the Applicant.
IA-1541/2025 was listed for hearing on 06.06.2025. Vide order dated 06.06.2025, the Hon'ble NCLT allowed IA-1541/2025 and appointed the Applicant (Mr. Navneet Kumar Gupta) as the Resolution Professional in place of the Erstwhile IRP.
After the appointment of the Applicant as the Resolution Professional of the Corporate Debtor, tried to take control and custody of the management of the Corporate Debtor. Subsequent to taking the custody the Applicant performed his duties in terms of the provision of the Code.
Non-Cooperation by the suspended directors with the Applicant
It is submitted that the team of the Applicant visited the registered office of the Corporate Debtor, various letters and emails have been sent by the Applicant to the suspended directors, however, the suspended directors have not responded to the said letters or emails.
The Applicant then convened the 4th meeting of the CoC on 30.06.2025. At the 4th COC meeting, the Sole CoC Member was apprised about the non-cooperation by the suspended directors.
Meanwhile, the Applicant was making every possible effort to contact the Suspended Directors. On 20.07.2025, the Applicant and his team along with the recovery consultant (appointed by the Sole CoC Member) met Mr. Pradeep Kumar one of the Suspended Directors, at the Indian Bank.
The Suspended Director informed that apart from 'Mercedes-Benz Car', he does not have any other asset. The Suspended Director, in the meeting, agreed to submit an affidavit confirming the absence of assets.
Thereafter, the 5th COC Meeting was convened by the Applicant on 29.08.2025. At the 5th CoC Meeting, the Applicant apprised the Sole CoC Member about the meeting held on 20.07.2025, and Mr. Pradeep Kumar has undertaken to provide an affidavit that he is not in possession of any records, document and/or assets. The Applicant further apprised the Sole CoC Member that the suspended directors are deliberately not cooperating in the CIRP.
During the deliberation and discussions in the 5th CoC Meeting, Mr. Gupta joined the Meeting and introduced himself as the Advocate for Mr. Pradeep Kumar (suspended director). Mr. Gupta assured the Applicant and the Sole COC Member that he would confirm the status of the assets and the affidavit to that effect, from Mr. Pradeep Kumar, and he would make sure that the requisite documents and/or information necessary for conducting the CIRP will be provided to the Applicant. Mr. Gupta further assured that the Car will be handed over to the Applicant at the earliest.
Neither the suspended director nor his Advocate (Mr. Nitin Gupta) have fulfilled the assurances given by them. The Applicant vide email dated September 09, 2025, raised objection in respect of the non-cooperation by Mr. Gupta and requested him to cooperate on immediate basis as the CIRP is a time bound process.
Mr. Gupta vide email dated September 10, 2025, responded to the Applicant's email dated September 09, 2025, wherein it was clarified by Mr. Gupta that he was unable to address the calls of the Applicant due to the court appearances and the same should not be treated as non-cooperation. Mr. Gupta further informed the Applicant that he is in the process of gathering the required data.
Since no further communication or response was received by the Applicant from Mr. Gupta, the Applicant vide email dated September 13, 2025, informed Mr. Gupta that despite repeated assurances by Mr. Gupta, the Applicant has not received any record either from the suspended director or Mr. Gupta.
The Applicant requested Mr. Gupta to provide a tentative date, by which the required data and the Car will be handed over to the Applicant. Mr. Gupta did not pay heed to the Applicant's email dated September 13, 2025.
The Applicant vide email dated September 29, 2025, sent a reminder to Mr. Gupta, however, Mr. Gupta did not pay heed to the said email as well.
The Applicant then conducted the 6th COC Meeting on October 06, 2025, wherein the Sole CoC Member was apprised that despite multiple assurances neither the Suspended Directors nor their representative Mr. Gupta, provided any document and/or information sought by the Applicant/ Resolution Professional. It was further informed to the Sole COC Member that at the 5th COC Meeting, Mr. Gupta had assured the Applicant that he will coordinate with the suspended directors for handing over of Mercedes-Benz car and for execution of an affidavit by Mr. Pradeep Kumar Gupta, affirming that Mr. Pradeep has no assets except the said Mercedes-Benz car and that all other assets of the Corporate Debtor had been sold prior to commencement of CIRP, despite such assurance there was no cooperation from the suspended directors and Mr. Gupta.
Subsequent to the 6th CoC Meeting, the suspended directors, instead of providing the documents and/or information sought by the Applicant, had sent an email expressing willingness to submit a Resolution Plan in terms of Section 240A of the Code.
It is pertinent to mention that prior to the appointment of the Applicant, an application being IA 5999 of 2024 was filed by the Erstwhile IRP under Section 19(2) of the Code thereby seeking directions against the Suspended Directors to cooperate. After the appointment of the Applicant, an additional affidavit was filed by the Applicant in IA 5999/2024 for placing on record the facts pertaining to the non-cooperation by the Suspended Directors.
Thereafter, the seventh meeting of the committee of creditors was conducted ("7th COC Meeting") by the Applicant. At the 7th COC Meeting, the Applicant/ Resolution Professional put the agenda for discussing the letter received by him from the suspended directors wherein they have expressed their intention to submit a resolution plan and the agenda for approval of the liquidation of the Corporate Debtor on account of persistent non-cooperation by the suspended directors, non-availability of assets and records and expiry of CIRP timelines.
At the 7th COC Meeting, it was apprised to the Sole CoC Member that the suspended directors had conveyed willingness to submit a resolution plan in terms of Section 240A of the Code. It was further informed that issuance of Form-G inviting expression of interest ("EOI") is mandatory for inviting the resolution plan. However, in the absence of any identifiable assets and valuation thereof, issuance of Form-G and inviting resolution plans is not feasible.
It was further apprised to the Sole COC Member that due to persistent non-cooperation, non-availability of assets and records and expiry of CIRP Timelines, the CIRP has come to an absolute standstill, and there remains no viable possibility of receiving a resolution plan. In the absence of cooperation and any realizable assets, it is not feasible to continue the CIRP, and, therefore, it is just, reasonable, and appropriate to initiate Liquidation of the Corporate Debtor under Section 33 of the IBC.
At the 7th COC Meeting, the suspended directors had also expressed willingness to settle the dispute in terms of Section 12A of the Code, however, no concrete settlement agreement was ever provided by the suspended directors.
The Applicant informed that although the guarantors are willing to settle the loan, however, there was no justification for continuing the CIRP since the Corporate Debtor has no assets of its own. Any recovery would inevitably be from the guarantors' assets and not from the Corporate Debtor. Therefore, pursuant to discussion with COC members, it was concluded that the appropriate course of action would be to initiate liquidation.
Therefore, at the 7th CoC Meeting following resolutions were put to vote:
"RESOLVED THAT pursuant to the provisions of Section 33(2) of the Insolvency and Bankruptcy Code, 2016, read with the CIRP Regulations, 2016, and in view of the persistent non-cooperation of the Suspended directors of Directors resulting in non-availability of the assets, books of accounts, statutory records, financial information, other documents required for the conduct and completion of the Corporate Insolvency Resolution Process, expiry of timeline of CIRP and considering that the CIRP has come to a complete standstill, the Committee of Creditors hereby approves initiation of Liquidation of the Corporate Debtor.
RESOLVED FURTHER THAT the Resolution Professional, be and is hereby authorized, to file an appropriate application before the Hon'ble National Company Law Tribunal, seeking an order for Liquidation of the Corporate Debtor under Section 33(2) of the IBC, and to take all necessary actions, file affidavits, representations and undertake all compliances required in this regard."
It is pertinent to mention that the Sole CoC Member unanimously resolved to initiate the Liquidation of the Corporate Debtor, and the authority was granted to the Applicant by the Sole CoC member to file the present Application. The voting results were shared with the CoC vide email dated December 31, 2025.
Ld. Counsel appearing on behalf of the Resolution Professional further submits the grounds for filing the liquidation as referred in the application which are as follows:-
a. Presently there is a standstill in the CIRP of the Corporate Debtor due to non-cooperation by the suspended directors.
b. Resolution Plan could not be invited by the Applicant as the documents and/or information required for publishing Form-G, Information Memorandum, Request for Resolution in terms of the provisions of the Code, are not available with the Applicant due to non-cooperation by the suspended directors.
c. Even though there was a verbal proposal from the suspended director to settle the matter in terms of Section 12A of the Code, however no concrete settlement plan has been submitted by the suspended directors.
d. The Statutory CIRP period (180 days/270 days/ 330 days) has already expired, even though the applications pertaining to the exclusion of time (being IA 1461 of 2025 and IA 4008 of 2025 and extension of time being IA 4454 of 2025 are pending adjudication before the Hon'ble NCLT.
Hence, the present Application bearing no. IA (IBC)(Liq.) 09/2026 was filed on 22.03.2026 by the RP for approval of the Liquidation of the CD.
Finding and Analysis: -
As submitted, due to non-cooperation from the Suspended Board of Directors, the required information are not available, consequently, the process of CIRP like preparation of Information Memorandum, publication of Form-G could not be carried out.
It is further submitted that CIRP period has already been expired and accordingly on 7thCoC meeting, the member in their commercial wisdom, resolved to initiate the liquidation process of the Corporate Debtor and directed the Applicant to file the present application.
We have considered the submissions made and material on record and noted that in the 7th CoC meeting, the CoC with 100% voting shares in their commercial wisdom has approved to take this Corporate Debtor into liquidation.
In this regard, reliance is placed on the judgment of The Hon'ble Supreme Court in the matter of K. Sashidhar versus Indian Overseas Bank & Ors. in Civil Appeal No. 10673 of 2018 where it was held that the commercial decision of the CoC is non-justiciable. In this case, it is seen that CoC with 100% majority has passed the resolution seeking liquidation of the Corporate Debtor. The relevant portion of this judgment is extracted below:
“19.... In the present case, however our focus must be on the dispensation governing the process of approval or rejection of resolution plan by the CoC. The CoC is called upon to consider the resolution plan under Section 30(4) of the I&B Code after it is verified and vetted by the resolution professional as being compliant with all the statutory requirements specified in Section 30(2). 62. ... In the present case, however, we are concerned with the provisions of I&B Code dealing with the resolution process. The dispensation provided in the I&B Code is entirely different. In terms of Section 30 of the I&B Code, the decision is taken collectively after due negotiations between the financial creditors who are constituents of the CoC and they express their opinion on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of CoC, the proposed resolution plan is placed for discussion and after full interaction in the presence of all concerned and the resolution professional, the constituents of the CoC finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non-recording of reasons would not per se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the “commercial/business decision” of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count."
The Hon'ble Supreme Court in the case of Committee of Creditors of Essar Steels v. Satish Gupta &Ors. in Civil Appeal No. 8766-67 of 2019 has also held as follows:
"42....Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of Section 30(2) of the Code, insofar as the Adjudicating Authority is concerned, and Section 32 read with Section 61(3) of the Code, insofar as the Appellate Tribunal is concerned, the parameter of such review having been clearly laid down in K. Sashidhar (supra)."
The resolution passed by the creditors, along with the voting results are attached below for perusal:
Resolution For Voting- 7th CoC Meeting
| Agenda Item No. | Resolution | Approve/Reject/Abtain | Stamp and signature |
|---|---|---|---|
| A07. | To Discuss and Approve Initiation of Liquidation of the Corporate Debtor due to Persistent Non-Cooperation, Non-Availability of Assets and Records and Expiry of CIRP Timelines "RESOLVED THAT pursuant to the provisions of Section 33(2) of the Insolvency and Bankruptcy Code, 2016 ("IBC"), read with the CIRP Regulations, 2016, and in view of the persistent non-cooperation of the Suspended Board of Directors resulting in non-availability of the assets, books of accounts, statutory records, financial information, other documents required for the conduct and completion of the Corporate Insolvency Resolution Process, expiry of timeline of CIRP and considering that the CIRP has come to a complete standstill, the Committee of Creditors hereby approves initiation of Liquidation of the Corporate Debtor. RESOLVED FURTHER THAT the Resolution Professional, be and is hereby authorized, to file an appropriate application before the Hon'ble National Company Law Tribunal, seeking an order for Liquidation of the Corporate Debtor under Section 33(2) of the IBC, and to take all necessary actions, file affidavits, representations and undertake all compliances required in this regard." | Approved |
Further, Section 33(2) of the Insolvency and Bankruptcy Code 2016 permits the CoC to resolve to liquidate CD at any point of time during the CIRP. Section 33(2) reads as follows:
33. Initiation of Liquidation
(2)Where the resolution professional, at any time during the corporate insolvency resolution process but before confirmation of resolution plan, intimates the Adjudicating Authority of the decision of the committee of creditors 1 [approved by not less than sixty-six per cent. of the voting share] to liquidate the corporate debtor, the Adjudicating Authority shall pass a liquidation order as referred to in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1).
2 [Explanation. – For the purpose of this sub-section, it is hereby declared that the committee of creditors may take the decision to liquidate the corporate debtor, any time after its constitution under sub-section (1) of section 21 and before the confirmation of the resolution plan, including at any time before the preparation of the information memorandum.]
In view of the above, we do not find any reason not to accept the commercial decision of the CoC to liquidate the CD, as the same will only delay the closure of the process prescribed under the IBC and erode the value of the CD further, which would not be in conformity with the overall object and intent of the IBC.
In the light of the above facts and circumstances, it is hereby ordered as follows:
IA(IBC)9(ND)2026 filed by Mr. Naveen Kumar Gupta, the Resolution Professional of Alpha Pacific Engineers Private Limited, the Corporate Debtor is allowed and the Corporate Debtor is ordered to be liquidated in terms of Section 33(2) of the IBC;
The CoC has not recommended the name of any Liquidator. Further, the Resolution Professional has expressed his unwillingness to act as the Liquidator for the liquidation process of the Corporate Debtor. Therefore, this Adjudicating Authority appoints Kamall Ahujaas the Liquidator of the Corporate Debtor, subject to holding a valid Authorisation for Assignment (AFA). The details of the appointed Liquidator are as follows: IBBI : IBBI/IPA-002/IP-N01025/2020-Registration No. 2021/13389 Email address : Nclt.srassociate@lawmax.in Address : A-5, 2nd Floor, Gurudwara Marg, Defence Colony, South, National Capital Territory Of Delhi, 110024 The Liquidator is required to file his Written Consent in the prescribed Form AA.
Mr. Naveen Kumar Gupta, the Resolution Professional of the Corporate Debtor is relieved from the present assignment as the Resolution Professional. The present Resolution Professional is directed to hand over the relevant documents and control of the Corporate Debtor to the newly appointed Liquidator forthwith.
The Liquidator shall initiate the Liquidation process as envisaged under Chapter III of the Code and the Insolvency & Bankruptcy Board of India (Liquidation Process) Regulations, 2016.
Public Notice shall be issued in the same newspapers in which advertisements were issued earlier, stating that the Corporate Debtor is in Liquidation. The Liquidator will also serve a copy of this order on the various Government Departments such as Income Tax, GST, VAT, etc., who are likely to have any claim upon the Corporate Debtor so that the authorities concerned are informed timely of the Liquidation order.
All the powers of the Board of Directors, and of key managerial personnel, shall cease to exist in accordance with Section 34(2) of the Code. All these powers shall henceforth vest in the Liquidator.
The personnel of the Corporate Debtor are directed to extend all assistance and cooperation to the Liquidator as required by him in managing the Liquidation process of the Corporate Debtor.
The Order of Moratorium passed under Section 14 of the Code shall cease to have its effect and a fresh Moratorium under Section 33(5) of the Code shall commence. On initiation of the Liquidation process but 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 the suit or other legal proceeding on behalf of the Corporate Debtor with prior approval of this Adjudicating Authority, as provided in section 33(5) of the Code read with its proviso.
In accordance with Section 33(7) of the Code, 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.
The Liquidator shall manage and govern the affairs of the Corporate Debtor and shall have resort to powers and duties in terms of Section 35(1) of the Code.
The Liquidator shall follow up and continue to investigate the financial affairs of the Corporate Debtor in accordance with provisions of Section 35(1) of the Code.
The Liquidator shall also follow up the pending applications for disposal during the process of Liquidation including initiation of steps for recovery of dues of the Corporate Debtor as per law.
The Liquidator shall submit Preliminary Report to the Adjudicating Authority within seventy-five days from the Liquidation commencement date as per Regulation 13 of the Insolvency and Bankruptcy (Liquidation Process) Regulations, 2016;
The fees of the Liquidator would be payable in terms of provisions of Section 34(2) of the IBC r/w Regulation 4 of IBBI (Liquidation Process) Regulations 2016.
The Liquidator and the Registry are hereby directed to send a copy of this order within 3 days from the date of this order to the Registrar of Companies, NCT of Delhi & Haryana. The Registrar of Companies shall take further necessary action upon receipt of a copy of this order.
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.
The Registry is further directed to send a copy of this order to the IBBI for their record.
A certified copy of this order may be issued, if applied for, upon compliance with all requisite formalities.
The Application bearing IA (IBC)(LIQ.)/9(ND)2026 filed in CP (IB) – 3458 (ND)/2019 is allowed and stands disposed of in accordance with the above directions.