Mr. Shyam Arora vs Debbrata Patra & Ors.

PER SH L. N. GUPTA, MEMBER (T)

The present IA has been filed by Mr. Shyam Arora, the Resolution Professional of M/s On Dot Courier and Cargo Limited. (‘the Applicant”) under Section 33(2) of the Insolvency and Bankruptcy Code, 2016 seeking the following main reliefs:

To put succinctly, the facts of the case are that the Operational Creditor, M/s Vandana Motors had filed an Application bearing No. (IB)-2011/(PB)/2019 under Section 9 of the IBC, 2016 for initiating the Corporate Insolvency Resolution Process (CIRP) against M/s On Dot Courier and Cargo Limited. The said Application was admitted by this Tribunal vide Order dated 26.02.2020 and Mr. Shyam Arora was appointed as the Interim Resolution Professional (IRP).

That the IRP Mr. Shyam Arora was confirmed as Resolution Professional (RP) of the Corporate Debtor vide Order dated 18.01.2021 passed by this Tribunal.

It is submitted by the Applicant that as per decision of the CoC, the Applicant invited the Expression of Interest (EOI) from the prospective resolution applicants by publishing FORM-G under IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 twice on 01.01.2021 and 12.02.2021. It is added that the said publication of Form-G was made in the newspapers namely, Financial Express (English) and Jansatta (Hindi). The Copy of the Form G has been placed on record vide Additional Affidavit dated 19.05.2021.

It is further submitted that in spite of the publication of the Form G twice, the Applicant received no Expression of Interest.

It is averred by the Applicant that as the Corporate Debtor (CD) was in the business of retail Courier and Logistic Services, it was difficult for it to survive in the industry due to heavy competition from the big players and also due to rapid changes in the technology which required heavy capital expenditure.

It is submitted by the Applicant that the 4th meeting of the CoC held on 31.03.2021 took note of the fact that no resolution Applicant has come forward pursuant to publication of the Form „G‟ twice and passed the Resolution recommending Liquidation of the CD.

That after observing some discrepancies and deficiencies in the Application, certain clarifications including as to how the resolution passed by the CoC in its 4^th meeting recommencing Liquidation of the Corporate Debtor was in terms of Section 33(2) of IBC 2016, were asked from the Applicant on 17.05.2021. The Applicant was further directed to bring on record the Liquidation value of the Corporate Debtor as well as the Publications made in Form A and Form G.

That in response to the clarifications sought, the Applicant has filed an Additional Affidavit dated 19.05.2021, wherein in para 5 it is disclosed by the Applicant……“That the Average fair value of assets (Movable and Immovable) as per the valuation conducted by two Registered valuers in terms of Regulation 27 of the IBBI (IRPCP) Regulations 2016 is Rs. 95.77 Lacs and Average Liquidation value is arrived at Rs 78.34 Lacs respectively”.

It is submitted by the Applicant that in terms of Regulation 6(1) of the IBBI (IRPCP) Regulations 2016, Form-A for invitation of claims was published in the newspapers namely, Financial Express (English) and Jansatta (Hindi) on 29.02.2020. The copy of the Form A has been placed on record vide Additional Affidavit dated 19.05.2021.

It is further submitted by the Applicant that the COC in its 4th meeting held on 31.03.2021 finding that no resolution Applicant has come forward, considered the following Resolution as Item No. 8 :

It is further submitted by the Applicant that the aforesaid agenda of Liquidation was approved by 87.82% voting share of the CoC. The members of COC at serial no. 1 & 2 voted in favour of the agenda :

That the Applicant through its Additional Affidavit dated 19.05.2021 has also brought on record the statements of M/s Shakti Cargo & Logistics and M/s Vandana Motors, both members of the CoC who voted in favour of the Liquidation of the CD in the the 4^th meeting of the COC held on 31.03.2021. It is stated by them that they participated in the 4^TH Meeting of COC through VC and voted on the resolution recommending Liquidation of the CD and for appointing applicant/RP as the Liquidator. They have further declared that they have signed the relevant physical voting sheets.

That the relevant voting sheets (page 28 & 35) approving the Item no 8 recommending Liquidation of the CD and signed by the members of COC as annexed to the Application are reproduced below -

That the Applicant/RP has also filed his „written communication‟ to act as Liquidator of the Corporate Debtor in Form 2 as required under Section 34(1) of the IBC, 2016.

In the circumstances and there being no other alternative, this Bench is inclined to accept the relevant Resolution of the COC dated 31.03.2021 and order Liquidation of the Corporate Debtor.

In sequel to the above, the present IA is allowed, ordering Liquidation of the Corporate Debtor - M/s. On Dot Courier and Cargo Limited in the manner as laid down in the Chapter III of Part II of the Insolvency and Bankruptcy Code, 2016 and in accordance with the relevant Rules and Regulations along with the following directions:

a. Mr. Shyam Arora, having IBBI Registration No. IBBI registration Number (IBBI/IPA-002/IP-N00546/3017-18 /11703), is appointed as Liquidator, who has given his written consent to act as Liquidator in terms of Section 34 (1) of IBC 2016;

b. The Liquidator, is directed to issue public announcement clearly stating that the Corporate Debtor is under Liquidation in terms of Regulation 12 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016;

c. The Order of Moratorium passed under Section 14 of the Insolvency and Bankruptcy Code, 2016 shall cease to have its effect and a fresh Moratorium under Section 33(5) of the Insolvency and Bankruptcy Code shall commence;

d. This Order shall be deemed to be a notice of discharge to the officers, employees and the workmen of the corporate debtor as per Section 33(7) of the Insolvency and Bankruptcy Code, 2016;

e. Liquidator shall follow up and continue to investigate the financial affairs of the Corporate Debtor to determine the undervalued and preferential transactions etc., if any.

f. The Liquidator shall submit a Preliminary Report to the Adjudicating Authority within seventy-five (75) days from the Liquidation commencement date as per Regulation 13 of the Insolvency and Bankruptcy (Liquidation Process) Regulations, 2016.

g. The Registry is directed to communicate a copy of this Order by email to the Operational Creditor, the Corporate Debtor and Liquidator Mr. Shyam Arora at the earliest but not later than seven days from today.

h. A copy of this Order be sent by the Registry and Liquidator to the Registrar of Companies (RoC), NCT of Delhi & Haryana for updating the Master Data. After updating the Master Data, ROC shall send compliance report to the Registrar, NCLT within a period of 30 days;

IA-1996/2021 filed in IB-2011(PB)/2019 is allowed in the aforesaid terms.