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Judgment
ORDER
Ms. Pinki, Ld. Counsel for the Applicant present.
This Application has been filed by the RP under Section 12(2) of the Code r/w Rule 11 of NCLT Rules, 2016 seeking extension of 180 days from 19.10.2024 for completion of the Corporate Insolvency Resolution Process.
The Corporate Debtor was admitted into the Corporate Insolvency Resolution Process vide order dated 24.01.2024 wherein Mr. Shekhar Arvind Parkhi bearing Registration Number, IBBI/IPA-001/IP-P-02494/2021-2022/13801 was appointed to act as the Interim Resolution Professional and was later on confirmed as Resolution Professional.
The Resolution Professional i.e. Applicant published Form - G on 05.03.2024 in Free Press Journal (English) and Navakal (Marathi) newspapers inviting Expression of Interest (EOI) from Prospective Resolution Applicants (PRA).
The invitation in Form- G was issued on 05.03.2024 for submitting expression of interest from prospective resolution applicants. Final list of Prospective Resolution Applicant was submitted on 14.04.2024 with one Prospective Resolution Applicant. Accordingly, RFRP and Evaluation Matrix was submitted by Resolution Professional to CoC member and PRA, however, no plan was submitted by such PRA.
The Resolution professional further re-issued the Form-G on 25.07.2024 inviting Expression of Interest (EOI) from Prospective Resolution Applicants (PRA) and the last day for submission of Expression of Interest (Hereinafter, referred as ‘EOI’) along with Earnest -Money Deposit was 16" August, 2024. The Applicant (RP) received EOI of Ms. Sanjeevani Kamalakar (PRA) and after verification of ail the documents, Ms. Sanjeevani Kamalakar was selected as Prospective Resolution Applicant in the provisional list of Prospective Resolution Applicant of the Corporate Debtor. On 14.10.2024, the Resolution Professional issued the Information Memorandum, Request for Resolution Plan (RFRP) along with Evaluation Matrix to the Prospective Resolution Applicant i.e. Ms. Sanjeevani Kamlakar. It is stated that said Resolution Applicant submitted plan on 13.11.2024.
Heard the learned Counsel for the Applicant and perused the records.
Ld. Counsel for the Applicant contended that on 16.01.2024, this Bench recalled the order dated 05.01.2024 and the said order was not informed to the RP by the registry. That in order to ascertain the whereabouts of the proceedings on 16.01.2024, the team of the RP visited the Registry of NCLT, Mumbai Bench to enquire about the said order. However, despite his sincere efforts, the Resolution Professional was not able to obtain any information from the Registry. That it is pertinent to mention that despite persistent efforts to ascertain the contents of the order dated 16.01.2024, the RP could not’ ascertain an iota of information. It is further pertinent to mention that even though the said order was passed on 16.01.2024, the same was uploaded on the portal on 11.07.2024.
It is pertinent to mention here that the Applicant had filed an application I.A. 3402/2024 seeking inclusion of period 19 days i.e. 05.01.2024 to 24.01.2024, wherein this Bench vide order dated 04.07.2024 passed a following order:
“This bench is of the considered view that the order dated 05.01.2024 was non-est having been pronounced by a Bench with combination of Members other than the combination who had actually heard the matter. Accordingly, the prayer of applicant cannot be considered, so as to include the period from 05.01.2024 to 23.01.2024 as deemed to be part of CIRP process. Since the order dated 05.01.2024 is non-est, the IRP is directed to carry out the process pursuant to order dated 24.01.2024.”
The Applicant had filed application I.A. 3402/2024 on 20.06.2024, therefore, the contentions of the Applicant to say that they are not aware about the order dated 16.01.2024 are not true. It is also pertinent to mention herein that the Applicant has already sought an extension of 90 days beyond 180 days in the CIRP period which was allowed on the basis of CIRP commencement date 24.01.2024.
On the date of hearing, Ld. Counsel for the Applicant was asked to apprise the status of the Resolution Plan received on 13.11.2024, however, it was submitted that nothing has proceeded thereafter. At Para 9 of the Application, it is stated that “it is imperative that the extension of further 80 days is granted in order to facilitate voting of the plan by the CoC and if it receives approval by the CoC then the subsequent approval by the hon’ble NCLT.” A period of 270 days has already expired on 19.10.2024 and as on the date of hearing no substantial progress has taken place on consideration of the plan. The present application seeking extension was filed on 10.12.2024 i.e. one month after the receipt of the Resolution Plan and the Application does not give any details of the steps taken by the Applicant as well as CoC after receipt of the plan on 13.11.2024. In view of these facts, we do not find any substance in the submission that the Resolution of the Corporate Debtor can take place, if extension is allowed. Further, there is no provision in the Code to allow an extension of 180 days at one go already a period of approximately 115 days has already expired since the last expiry of CIRP period.
In view of the above discussion, we do not find any merit in the prayer and are of considered view that Corporate Debtor has to be liquidate mandatorily in terms of Section 33(1)(a) of the Code in view of non-receipt of the plan within the prescribed time even pursuant to second issue of Form-G.
In view thereof, we consider it appropriate to order liquidation of the Corporate Debtor and pass following order.
This Bench appoints Mr. Birendra Kumar Agarwal, having Registration No. IBBI/IPA-001/IP-P00564/2017-2018/11040, email [email protected] is hereby appointed as the Liquidator as provided under Section 34(1) of the Code.
a. That the Liquidator for conduct of the liquidation proceedings would be entitled to the fees as provided in Regulation 4(2)(b) of the IBBI (Liquidation Process Regulations), 2016.
b. 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.
c. The Liquidator appointed under section 34(1) of the Code. 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.
d. 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.
e. 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.
f. 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.
g. This liquidation order u/s 33(7) 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.
h. The liquidator shall be at liberty to pursue pending the Interlocutory Application pertaining to avoidance transactions, if any.