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Judgment
ORDER
11.07.2022: Heard Mr. E. Om Prakash, the Learned Senior Counsel appearing for the Appellant and also Mr. T.K. Bhaskar, the Learned Counsel appearing for the Respondent / Liquidator of M/s. St. John Freight Systems Limited, Chennai – 17.
According to the Learned Senior Counsel for the Appellant, the instant Company Appeal (AT)(CH)(Ins) No.238/2022 is preferred by the Appellant, as an ‘Aggrieved person’, on being dissatisfied with the ‘Impugned Order’ dated 11.03.2022 in MA/122/2021 in CP/759/IB/2018 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench-II, Chennai).
Earlier, the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench-II, Chennai), while passing the ‘Impugned Order’ dated 11.03.2022 in MA/122/2021 in CP/759/IB/2018 at Paragraph Nos.8 to 10 had observed the following:-
“8.The Learned Counsel for the Applicant submitted that three resolutions as to a) proceed with the proposal of Global Corp LLC, b) to proceed with proposal of Galaxy Freight System Limited and c) to carry out Swiss challenge method for maximizing the value of the proposal was passed along with voting for the proposal on 22.10.2021. Summary and the result of the voting are as follows:
Particulars Global Corp Logistics LLC Galaxy Freight Private Limited Swiss Challenge Voted For 2 - 2 Voted For 25% 0% 25% Voted against 2 4 2 Voted against 25% 50% 25% Abstained from voting 4 4 4 Abstained from voting 50% 50% 50% Total No. of persons 8 8 8 Total percentage 100% 100% 100% 9.The learned counsel for the applicant / liquidator states that the reasons for not voting and voted against the resolution were recorded in the Ninth Stakeholders committee meeting. Further an offer from the promoter under Section 230 of Companies Act, 2013 was received by the liquidator with no sufficient clarity as to the investor or any proper reply for the clarifications raised was answered. However, the same was put before the SCC meeting, which was subsequently rejected figuring out it to be a delay strategy. It is further submitted that the liquidator after October 2021 has received expression of interest from three buyers. However, the same was not considered as they were submitted after the timeline prescribed. The applicant in pg.no.18 of the application has tabulated the comparison of liquidation value, quoted value along with the voting percentage which did not meet the 66% of the stakeholders vote. It is evident herein that Proposal – A shows up to be Rs.137.54 Crore which is mere closer to that of Rs.147.72 Crore, the liquidation value. The liquidator in this situation as the SCC is unable to meet the vote not less than 66% has come up with the reasons recorded in the application to fix Proposal – A as the base price and go ahead with Swiss Challenge method among the other prospective buyers including the EoI received after the specified timeline.
10.Heard the submission made by the Learned Counsel for the Applicant and perused the documents placed on record. At this juncture it is relevant to refer Ravi Development vs. Shree Krishna Prathisan and ors. (Civil Appeal No.3459 of 2009) in which the Hon’ble Supreme Court has held with respect to adoption of Swiss Challenge Method that ‘The method is transparent in as much as all the parties were well aware of the “right of first refusal” accorded to the “originator of proposal”. As per the method which was known to all the parties the originator of the proposal must in consideration of his vision and his initiative be given to the benefit of matching the highest bid submitted. Further has also held that an unsolicited bid or a proposal received from the developer can thus be subjected to a bidding process by different modes including the Swiss Challenge method.”
Accordingly, the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench-II, Chennai) directed the Applicant / Liquidator (in the Impugned Order dated 11.03.2022 passed in MA/122/2021 in CP/759/IB/2018) allowed to fix ‘Proposal – A’, as base price and accordingly adopt ‘Swiss Challenge Method’ including the proposals received ‘after the specified timeline’ considering the fact of ‘maximisation of the value’ of the Corporate Debtor and ‘Allowed’ the MA/122/2021 in CP/759/IB/2018 on 11.03.2022.
It is represented on behalf of the Appellant that the ‘Instant Company Appeal (AT)(CH)(Ins) No.238/2022’ preferred by the Appellant is well within the ‘period of limitation’ and in this regard the ‘Appellant’ seeks the ‘aide’ of the ‘Order’ of the ‘Hon’ble Supreme Court’ dated 10.01.2022 in a suo motu Writ Petition (C ) No.3 of 2020 and thereby and wherein the ‘Period of Limitation’ was extended up to ‘30 days’ and it is a ‘fervent plea’ of the ‘Appellant side’ as that the ‘Instant Company Appeal (AT)(CH)(Ins) No.238/2022’ is well within the ‘Period of Limitation’.
Per contra, the Learned Counsel for the Respondent Mr. T.K. Bhaskar appearing for the Liquidator / Respondent contends that the present ‘Company Appeal (AT)(CH)(Ins) No.238/2022’, on the file of this ‘Tribunal’, is clearly ‘barred by Limitation’, based on the fact that the ‘Impugned Order’ was passed on 11.03.2022 in MA/122/2021 in CP/759/IB/2018, ‘30 days’ period for preferring an ‘Appeal’ expired on 11.04.2022 and thereafter ‘15 days’ period, as envisaged under Section 61 (2) also got expired on 26.04.2022 and considering the fact that the ‘Instant Company Appeal (AT)(CH)(Ins) No.238/2022’ was filed before the ‘Office of the Registry’ on 10.06.2022 vide Diary No.469/2022, then, the same is clearly ‘barred by Limitation period’.
In fact, the contention of the Learned Counsel for the Liquidator / Respondent is that the ‘invocation of the Order’ of the Hon’ble Supreme Court dated 10.01.2022 in ‘Suo Motu Writ Petition (C) No. 3 of 2020’ will not come to the ‘rescue’ of the ‘Appellant’.
On going through the ‘contentions’ advanced on ‘either side’, this ‘Tribunal’ without ‘traversing upon’ the merits of the matter ‘not delving deep’ into the same and also ‘not expressing’ any opinion, one way or the other, simplicter, on the aspect of ‘Limitation’ comes to a clear cut conclusion that the ‘Instant Company Appeal (AT)(CH)(Ins) No.238/2022’ preferred by the ‘Appellant’ before the ‘Office of the Registry’ on 10.06.2022 (vide diary No.469/2022) is clearly ‘barred by limitation’.
Furthermore, the invocation of the Hon’ble Supreme Court Suo Motu Writ Petition (C) NO. 3 OF 2020 dated 10.01.2022 will not be of any ‘assistance’ to the ‘Appellant’, as opined by this ‘Tribunal’.
Viewed in the above perspective, the ‘Instant Company Appeal (AT)(CH)(Ins) No.238/2022’ fails.
In fine, the ‘Instant Company Appeal (AT)(CH)(Ins) No.238/2022’ is dismissed. No Costs. The connected IA Nos.509, 510, 511 and 570 of 2022 are Closed.