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Judgment
The present Application has been filed under Section 54(1) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'Code') and Regulation 45(3) of IBBI (Liquidation Process Regulations), 2016 (hereinafter referred to as 'Regulations') r/w Rule 11 of NCLT Rules, 2016 (hereinafter referred to as 'Rules') by the Liquidator seeking an order of dissolution of M/s. Brilliant IT Enabling Private Limited, having CIN: U72900TN2001PTC047686 and Registered office at Old No. 65/1, New No. 149, LUZ Church Road, Mylapore, Chennai, Tamil Nadu, India - 600 004 (hereinafter referred to as 'Corporate Debtor').
It is stated that CIRP in respect of the Corporate Debtor was initiated on 04.03.2021 in IBA/1170/2019. Liquidation of the Corporate Debtor was ordered by this Tribunal vide order dated 04.10.2021 in IA/657/CHE/2019 in IBA/1170/2019 and the Applicant herein was appointed as the Liquidator.
The PF department submitted their claim online via e-mail on 06.10.2021 for a sum of Rs. 47,40,674/- (Rupees Forty Seven Lakhs Forty thousand Six hundred and seventy four only) which was rejected by the applicant. Subsequently PF department made revised claim on 17.12.2021 for a sum of Rs. 14,75,458/- (Rupees Fourteen Lakhs seventy five thousand four hundred and fifty eight only) which was also rejected by the applicant. Against the rejection of the applicant, PF department preferred appeals before this bench where the applicant was directed to consider the PF claims via order dated 31.01.2022 in IA/50/CHE/2022 of IA/657/2021 in IBA/1170/2019. In connection to this, the applicant by an email dated 28.02.2022 to PF department sought information regarding the CD's Bank statement which shows Debit of Rs. 4,28,017/- (Rupees Four Lakhs twenty eight thousand and seventeen only) towards the Regional Provident Fund charge as per the Notice of EPFO dated 10.05.2018 having Reference No. 22051813 on 02.06.2018. The applicant then rejected the PF department claim. The Statement of the CD's bank account showing the above transaction is provided as below:
Pursuant to that, the Liquidator filed a Preliminary report on 16.12.2021 detailing the Asset Memorandum of the Corporate Debtor as below:
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL CHENNAI BENCH, COURT 2
IA / 657/CHE/ 2021 dated 04.10.2021 order received on 5.10.2021
IBA NO 1170 OF 2019
In the matter of M/s. BRILLIANT IT ENABLING SERVICES PRIVATE LIMITED
PRELIMINARY REPORT
Annexure - 3
Estimate of Assets and Liabilities of Corporate Debtor
Sl No. Particulars Note Reference Amount Rs 1 Cash and Bank Balance Note - 1 - 2 Investments in Subsidiaries Note - 2 - 3 Immovable Properties Note - 3 - 4 Sundry Debtors Note - 4 - 5 Other Recoveries Note - 5 - Total - Liabilities
Sl No. Particulars Note Reference Amount Rs 1 Claims submitted Note - 6 47,40,674.00 2 Other Expenses (incurred) Note - 7 14,112.00 3 Estimate of Monthly Expenses expected to be incurred Note - 8 50,000.00 4 5 TOTAL 48,84,706.00 Note
Claim was given by PF department, however CD clarified to the PF department that there was no does and PF payment s was discharged
PF department requested for Android Financials of 2014-15 which was shared to them
CD is in the process of giving Revised claim based on Above
No other Creditors have given claim
Company does not have any assets in Liquidation expenses Even so meet the liquidators fees
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL CHENNAI BENCH, COURT 2
IA / 657/CHE/ 2021 dated 04.10.2021 order received on 5.10.2021
IBA NO 1170 OF 2019
In the matter of M/s. BRILLIANT IT ENABLING SERVICES PRIVATE LIMITED
Asset Memorandum as on - 16.12.2021
Sl No Particulars Description Type of Asset 1 Company Does not have any assets JBL NSL 2 3 4 5 6 7 8 9 TOTAL
Note: The above Asset Memorandum is prepared based on the best information made available to us.Th It is stated that the Corporate Debtor has no realizable or salable assets, and continuing the process will only increase the cost of liquidation and hence the applicant has opted for the dissolution of the Corporate Debtor.
The Applicant/Liquidator in his Closure report (the Progress report) dated 05.04.2021, has stated the details of CIRP expenses and Liquidation cost of Corporate Debtor in the table as below,
| Sl. No. | Stakeholders under section 53 (1) | Amount Claimed | Amount Admitted | Amount Distributed | Amount Distributed to the Amount Claimed (%) | Remarks |
|---|---|---|---|---|---|---|
| (1) | (2) | (3) | (4) | (5) | (6) | (7) |
| 1 | (a): CIRP Costs | 68,136 | 68,136 | Said amount of Rs 18136 was incurred for public notice and Rs 50000/- was paid as Professional fees during CIRP | ||
| 2 | (a): Liquidation Costs | 14,142 | 14,142 | Said amount was incurred by Liquidator for Public announcement of Liquidation and not yet refunded to him as there is no liquidation estate | ||
| 3 | (b)(i) Liquidator fee and expenses | 40,000 | ||||
| Total |
Heard the submissions made by the Learned Counsel for the Applicant and perused the documents on record. It can be seen from the Liquidator's closure cum progress report and Form H (Compliance Certificate) that there is no Liquidation estates with the Corporate Debtor as follows,
PROGRESS REPORT FOR THE QUARTER ENDING 31.3.2022 DATE OF COMMENCEMENT OF LIQUIDATION PROCESS Order Delivered on 4th October 2021 and received on 5.10.2021
S.NO PARTICULARS 1 Appointment of professionals Nil 2 Statement on progress in liquidation i. Settlement of list of stakeholders Claim was given only by PF department, Chennai however on verification of records amount mentioned as claim was already paid by Corporate Debtor , which was informed to PF department vide email dated 31.3.2022 ii. Detail of any property that remain to be sold and realised There is no property available and hence no liquidation estate iii. Distribution made to the stakeholders and Nil/ NA iv. Distribution of unsold property made to the stakeholders: Nil/ NA
3 I. Fee due to / received by the liquidator and description of the activities carried out by the liquidator Monthly Fees is Rs 40,000/- to be received II. Remuneration or fee paid to professionals Nil
III. appointed by the liquidator Other expenses incurred by the liquidator Expenses incurred on Public Notice for Rs14,122/- 4 Developments in any material litigation, by or against the corporate debtor Nil 5 Filing of and development in applications for avoidance of transactions in accordance with Chapter III of part II of the code Bank account of the CD was examined and no fraudulent transactions/ avoidance found CD does not carried out any activity since last 2 years that is from 2018 6 Changes if any, in estimated liquidation costs Nil 7 Progress in sale of Assets No Assets available Statement indicating any material changes in expected realization of any property proposed to be sold, along with the basis for such changes. – Not applicable
In the Audited Receipts & Payments filed by the Liquidator dated 05.04.2022, the details of the Receipts and Payments starting from Liquidation commencement date (04.10.2021) till 31.03.2022 have been tabulated and same are below,
Liquidation account of Brilliant IT Enabling Services Private Limited IA /657/CHE/ 2021 in IBA/ 1170/ 2019
Receipts and payments account for the Quarter ended on 31.3.2022
Receipts For the quarter ended 31.3.2022 (Rs.) Cumulative from 04.10.2021 (Rs.) Payments For the quarter ended 31.3.2022 (Rs.) Cumulative from 04.10.2021 (Rs.) Nil Nil Nil Nil Nil Nil Date 05.04.2022
Chennai
IP Regn. No: IBBIPA-0018P-P00724/2017-18111254 In the Compliance Certificate filed in Form-H by the Applicant, there is no record about the PUFE transactions in the Corporate Debtor.
The Application filed by PF department against rejection of claim in IA(IBC)/775(CHE)2022 in IBA/1170/2019 has also been dismissed by this tribunal, vide order dated 22.12.2023. Therefore no pending litigation exists in relation to the Corporate Debtor, before this tribunal.
From the submissions of the Counsel and on perusal of the records we find that there are no realizable assets in the Corporate Debtor.
Section 54 of the IBC, 2016 provides as follows: -
"Section 54
(1)Where the assets of the corporate debtor have been completely liquidated, the liquidator shall make an application to the Adjudicating Authority for the dissolution of such corporate debtor.
(2)The Adjudicating Authority shall on application filed by the liquidator under sub-section (1) order that the corporate debtor shall be dissolved from the date of that order and the corporate debtor shall be dissolved accordingly.
(2)A copy of an order under sub-section (2) shall within seven days from the date of such order, be forwarded to the authority with which the corporate debtor is registered."
Regulation 14 of the IBBI (Liquidation Process) Regulation 2016 reads as follows,
"Regulation 14: Early dissolution.
Any time after the preparation of the Preliminary Report, if it appears to the liquidator that-
(a)the realizable properties of the corporate debtor are insufficient to cover the cost of the liquidation process; and
(b)the affairs of the corporate debtor do not require any further investigation; he may apply to the Adjudicating Authority for early dissolution of the corporate debtor and for necessary directions in respect of such dissolution."
Regulation 45 of the IBBI (Liquidation Process) Regulation 2016 reads as follows,
"Regulation 45: Final report prior to dissolution.
(1)When the corporate debtor is liquidated, the liquidator shall make an account of the liquidation, showing how it has been conducted and how the corporate debtor's assets have been liquidated.
(2)If the liquidation cost exceeds the estimated liquidation cost provided in the Preliminary Report, the liquidator shall explain the reasons for the same.
(3)The liquidator shall submit an application along with the final report and the compliance certificate in form H to the Adjudicating Authority for –
(a)closure of the liquidation process of the corporate debtor where the corporate debtor is sold as a going concern; or
(b)for the dissolution of the corporate debtor, in cases not covered under clause (a).
Going through the above provisions, the Circumstances prevailing and records placed before, this Tribunal, we find that it would be just and proper to order for the dissolution of the Corporate Debtor as per Section 54 of the Code.
Accordingly, we order the dissolution of the Corporate Debtor viz., M/s. Brilliant IT Enabling Private Limited. The Liquidator is directed to forward a copy of this Order to the RoC concerned and also to the IBBI for its records and for updating the status of the Corporate Debtor on the 'MCA Master data' within a period of 7 days from the date of this Order.
Accordingly, IA (IBC) / 576 (CHE) / 2022 in IBA / 1170 / 2019 stands allowed and disposed of.