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Judgment
This application is filed by the Liquidator of the Corporate Debtor M/s. Athena Chattisgarh Power Limited, seeking closure of the Liquidation process of Corporate Debtor (CD) on account of successful sale of the Corporate Debtor as a going concern.
The facts of the case, briefly, are as follows: This Tribunal had admitted the Company Petition filed under Section 7 of IBC vide order dated 15.05.2019 filed by the State Bank of India, a Financial Creditor and ordered commencement of CIRP of the Corporate Debtor. The Applicant was appointed as Interim Resolution Professional and later was confirmed as Resolution Professional (RP) for the Corporate Debtor.
a. Since the Resolution Professional did not receive any viable plan for the Corporate Debtor, this Tribunal ordered liquidation of the Corporate Debtor vide Order dated 13.05.2021 in I.A. 129 of 2021, filed by the RP and Mr. Kumar Rajan, the Applicant herein, was appointed as the Liquidator for the Corporate Debtor.
b. The Liquidator made public announcement on 12.06.2021 in Form-B, inviting claims from the Stakeholders and on receipt of claims, constituted the Stakeholders Consultation Committee (SCC) and appraised the status of the CD in terms of continuing material litigation, appointment of registered valuers, reappointment of Security and Fire-fighting agencies, leasehold land and issues thereof, renewal of insurance policies strategy for sale of assets of the CD in a time bound manner.
c. Further, the Applicant appointed GAA Advisory LLP and RNC Valuecon LLP as registered valuers as prescribed under Regulation 35(2) of the Liquidation Regulations for valuation of assets of CD and provided all the necessary information, clarifications sought by the registered valuers and facilitated their plant visit. The final Valuation Report submitted by the registered valuers on 21.10.2021 and a summary thereof was placed by the Applicant before SCC in its 2nd meeting, held on 25.10.2021.
d. Applicant convened a total of 12 SCC meetings on different occasions during the liquidation period to discuss about the affairs of the CD and it was resolved that the CD shall be sold as a going concern. However, the same could not be pursued due to lockdown. Accordingly, the Applicant filed an application before this Tribunal, seeking exclusion of 90 days for sale of CD as a going concern and the same was granted by this Tribunal by virtue of order dated 12.11.2021. The Applicant issued several public announcements for inviting bids for sale of CD as a going concern.
e. Pursuant to 5th Auction Notice, the Applicant received EoI from two prospective bidders viz; Jindal Power Limited and Orissa Metaliks Private Limited. Since the exclusion of 90 days expired on 10.02.2022 and there was scope for successful sale of the CD as a going concern in the light of EoI received, the Applicant filed an application, seeking further exclusion of 90 days before this Tribunal and this Tribunal granted an exclusion of 30 days, vide its order dated 25.03.2022, with directions that in the event the Applicant fails to complete the sale of the CD as going concern, he shall endeavour to sell the assets of the CD as per Regulation 32(e) to (d) of Liquidation Regulations.
f. With a view to complete the liquidation process, the Applicant in consultation with the SCC in its 8th meeting held on 16.04.2022, resolved to sell the assets of the CD either in the process of Sale as going concern (Block A) or as Sale of set of Assets (Block B) and accordingly 10th E-Auction Notice dated 19.04.2022 and Corrigendum to 10th Auction Notice dated 26.04.2022 were published. E-Auction was conducted on 06.05.2022 and Vedanta Limited was the highest bidder in respect of the sale of CD as a going concern, with a bid of Rs.564.67 Crores and Letter of Intent (LoI) was issued to VL and the total sale consideration was deposited by VL with the Applicant on 17.06.2022. Consequently, the Applicant filed an application, seeking permission of this Tribunal to sell the CD as going concern which was vide its order dated 29.06.2022.
g. The Applicant distributed Rs.400.00 Crores to the Secured Financial Creditors of the CD on 11.07.2022, as 1st tranche of distribution of claim admitted ratio and Rs.140.00 Crores on 27.07.2022 as 2nd tranche of distribution in compliance with waterfall mechanism, prescribed under Section 53 of the Code. Subsequently, the Applicant executed Sale Certificate in favour of VL, acknowledging receipt of entire sale consideration and handed over control and physical custody to Vedanta Limited on 21.07.2022.
h. It is submitted that, as on liquidation commencement date, the CD maintained a current account bearing no.38487381273 with State Bank India and an amount of Rs.72,092/- was lying in the said account. The Applicant transferred the said amount to the Escrow Account on 23.03.2023, closed the account and obtained account closure letter from the Bank.
It is further stated that, after distributing the 1st & 2nd Tranche amount of the sale consideration, residual amount of Rs.6,66,35,283 is lying in the Escrow Account, which is kept with a view to defray legal and other ancillary expenses until disposal of the present Application. Any amount pending after closure of liquidation process shall be distributed amongst the stakeholders in accordance with water fall mechanism prescribed under Section 53 and thereafter the account shall be closed.
j. It is further submitted that the following material litigation proceedings pending before this Tribunal are disposed of by virtue of Order dated 26.04.2023:
IA No.1484 of 2022 – Punjab National Bank & State Bank of India Vs. Liquidator of Athena Chattisgarh Power Ltd. & Anr.
IA No.162 of 2023 – Canara Bank Vs. Liquidator of Athena Chattisgarh Power Ltd. & Anr.
IA No.371 of 2023 – Bank of Baroda Vs. Liquidator of Athena Chattisgarh Power Ltd. & Anr.
IA 382 of 2023 – Punjab National Bank Vs. Liquidator of Athena Chattisgarh Power Ltd. & Anr.
IA No.5 of 2023 – State Bank of India Vs. Vedanta Ltd.
IA 307 of 2023 - Punjab and Sind Bank.
k. The Applicant has filed a Memo dated 28.08.2023 submitting that none of these orders is under challenge and appeal period is already over. Therefore, these orders have attained finality.
One more IA No.2910 of 2021 in CP No.2295 of 2018 is pending before NCLT, Mumbai. We direct SRA M/s. Vedanta Limited to pursue this matter till its final disposal and to implement the order if any passed against or in favour of Corporate Debtor.
l. It is submitted that since the entire sale proceeds have concluded with the distribution of the funds amongst the creditors of the Corporate Debtor, the Liquidator is seeking closure of the Liquidation proceedings against the Corporate Debtor.
m. The Liquidator has submitted the List of Stakeholders, Preliminary Report, Asset Memorandum, Minutes of SCC, Progress reports, Final Report and a Compliance Certificate in Form-H, to this Tribunal.
We heard the Counsel for the Liquidator and perused the application filed by the Liquidator under Regulation 45(3)(a) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, praying the Adjudicating Authority to order for closure of the liquidation process of the Corporate Debtor Company process is complete. The said provision reads as under:-
“Regulation 45 (3) (a): Final report prior to dissolution.
(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
Upon perusal of the Final Report, it is evident that the Liquidator has sold the Corporate Debtor as a going concern, as such, it is a fit case for closure of Liquidation process.
As a sequel to the above, we hereby order closure of the Liquidation proceedings against the Corporate Debtor viz. M/S. ATHENA CHATTISGARH POWER LIMITED from the date of this Order, in terms of Regulation 45 (3) of Insolvency & Bankruptcy Board of India (Liquidation Process) Regulations, 2016. Consequently, the Liquidator stands relieved.
The Liquidator is directed to send the copy of this Order within 7 days from the date of pronouncement to the Registrar of Companies, Hyderabad and the concerned authorities and hand over all the books and files of the Corporate Debtor M/S. ATHENA CHATTISGARH POWER LIMITED which are in possession of the Liquidator to the successful bidder i.e. M/S. VEDANTA LIMITED.
The Registry is directed to communicate this order to the Registrar of Companies, Hyderabad and concerned authorities for updating the master data.
A copy of this order be also forwarded to the Insolvency & Bankruptcy Board of India, New Delhi.
Certified Copy of this order may be issued, if applied for, upon compliance of all requisite formalities.
In terms of the above, IA No. 585 of 2023 in CP No.616/7/HDB/2018 stands disposed of accordingly.