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Judgment
O R D E R
Per: D. Arvind, Member (Technical)
The court convened through hybrid mode.
Ld. Counsels appearing on behalf of the parties were heard in extenso.
This application IA(IBC)(DIS.)/988(KB)2021 has been preferred to
seek the following reliefs, inter alia: -
(a)The Hon’ble Tribunal to dissolve the Corporate Debtor under Section 54(2) of IBC 2016;
(b)To pass an Order to dissolve the Corporate Debtor from the date of Order passed by the Hon’ble NCLT, Kolkata Bench;
(c)Any other directions which the Hon’ble National Company Law Tribunal, Kolkata Bench may deem fit and proper in the facts and circumstances of the matter;
Factual matrix of the case is as under: -
This application has been filed by Naviplast Traders Pvt. Ltd. (hereinafter referred to as “Financial Creditor/Applicant”) under section 54(2) of the Insolvency and Bankruptcy Code, 2016 (“Code”) read with regulation 45(3) of the Insolvency and Bankruptcy Board of India [Liquidation Process] Regulations, 2016 (“Liquidation Process Regulations”) by the Liquidator of M/s. R G Shaw & Sons Private Limited (hereinafter referred to as “Corporate “Debtor”) praying for dissolution of the Corporate Debtor.
This Adjudicating Authority vide Order dated 12th April, 2017, admitted the Corporate Debtor under Corporate Insolvency Resolution Process (“CIRP”) and appointed Mr. Sumit Binani as Interim Resolution Professional (hereinafter referred to as “IRP”). Subsequently, his appointment was confirmed as the Resolution Professional on 26th July, 2017.
During the CIRP process as no Resolution Plan was received and maximum time available under CIRP, this Adjudicating Authority considered entire facts and passed the liquidation Order against the Corporate Debtor and appointed the applicant as the Liquidator.
The liquidator was required to complete the liquidation process within a period of 2 years from the date of liquidation commencement date. The liquidation period was initially scheduled to end on 07.12.2019. Since none of the assets of the Corporate Debtor could be sold and while the proposition for selling the Corporate Debtor as a going concern was pending adjudication before this Adjudicating Authority. Details of all the extensions & exclusions are given below: -
Sl. Nos. | Particulars | Time (in days) | Date |
|---|---|---|---|
| 1. | CIRP Commencement Date | 12.04.2017 | |
| 2. | Liquidation Commencement Date | 08.12.2017 | |
| 3. | Liquidation Closure Date (2 Years) | 2 YEARS | 08.12.2019 |
| 4. | Extended date of closure of liquidation period vide Order dated 09.12.2019 passed by this Adjudicating Authority being numbered as CA(IB)1674/KB/2019 for extension of the liquidation period for further 3 months. | 3 MONTHS | 08.03.2020 |
| 5. | Extended date of closure of liquidation period vide Order dated 13.03.2020 passed by this Adjudicating Authority being numbered as IA(IBC)440/KB/2020 for extension of the liquidation period for further 6 months. | 6 MONTHS | 08.09.2020 |
| 6. | Extended date of closure of liquidation period vide Order dated 08.01.2021 passed by this Adjudicating Authority being numbered as IA(IBC)1308/KB/2020 for exclusion of the liquidation period of 249 days, i.e., since 25.03.2020 to 30.11.2020 on account of lockdown imposed in the state of West Bengal. | 249 DAYS | 16.05.2021 |
| 7. | Extended date of closure of liquidation period vide Order dated 15.07.2021 passed by this Adjudicating Authority being numbered as IA(IBC)492/KB/2021. | 6 MONTHS | 16.11.2021 |
The applicant has prepared a final report as on 16.11.2021 disclosing all the material facts and information with respect to the liquidation process of the Corporate Debtor.
As per the mandatory requirement under Regulation 45(3) of Liquidation Regulations the liquidator has prepared a compliance certificate under prescribed ‘Form H’.
The other information and details relating to the Liquidation of the Corporate Debtor was filed with the Registry by way of total 16 (sixteen) Progress Reports including Final Report, the date & details of which has also been enumerated in the Final Report.
The assets forming part of the liquidation estate which were realizable had been sold and the amount realized thereof had been duly distributed in accordance with the provisions of Section 53 of IBC 2016 in the Order of priority Order as mandated under the Act. Details of realization and distribution has been more specifically mentioned in the ‘Form H’ and Final Report annexed therein.
The Accounts of Liquidation prepared in terms of Regulation 45(1) and details for completion of the liquidation had been attached in the Final Report.
Bank Statement upto the filing of the application and Audited Account of Receipt & Payments is enumerated in the Final Report.
Hence, the rival contentions were noted.
We would infer that approval of the Resolution Plan shall not affect the proceedings of the PUFE applications and the Resolution Professional shall continue to pursue those applications sans any barrier.
At this juncture, we would go through the various provisions of the Insolvency & Bankruptcy Code dealing with the dissolution of the Corporate Debtor which are as follows: -
Section 54 of the Insolvency & Bankruptcy Code Dissolution of Corporate Debtor –
(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.
(3)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.”
Rule 45 of Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016:
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)or the dissolution of the corporate debtor, in cases not covered under clause (a).
We would note that the Applicant in compliance to the Code and its Regulations has discharged his duties diligently and has made several efforts for the maximum realization from the assets of the corporate debtor. The liquidation Process is fully complete. Thus, the Liquidator in compliance has filed the present application under Section 54 read with Regulation 45 of IBBI (Liquidation Process) Regulation, 2016, seeking an Order of dissolution of the corporate debtor.
In compliance of regulation 15 of the Liquidation Process Regulations, the Liquidator has filed sixteen quarterly Progress Reports from time to time before this Adjudicating Authority and also the final report disclosing all the material facts and information with respect to the liquidation process of the Corporate Debtor. As per mandatory requirement under regulation 45(3) of the Liquidation Process Regulations, the Liquidator has prepared a compliance certificate under prescribed ‘Form H’. Both the final report and compliance certificate under form H is annexed with the application.
A conjoint reading of these the statutory provisions as noted supra, mandates upon completion of the liquidation of the assets of the corporate debtor, filling of subsequent application to the Adjudicating Authority to seek dissolution under Section 54 of the IBC where the assets of the Corporate Debtor either have been completely liquidated after distribution among the Stakeholders or for early dissolution under Regulation 14 of the Liquidation Process Regulations, or where the realizable properties of the corporate debtor are insufficient to cover the cost of the liquidation process, the liquidator may apply to the Adjudicating Authority for early dissolution.
In view of the above facts and circumstances, this Adjudicating Authority in exercise of the powers conferred under sub-section (2) of section 54 of the Code hereby Orders dissolution of the Corporate Debtor, viz., M/s. R G Shaw & Sons Private Limited from the date of this Order, thus stands dissolved and consequently, the Liquidator stands relieved from his responsibilities, subject to procedural compliances.
The Liquidator and the Registry are hereby directed to serve a copy of this Order upon the Registrar of Companies, West Bengal, within fourteen days of receipt of this Order. The Registrar of Companies shall take further necessary action upon receipt of a copy of this Order.
Further, the Liquidator is directed to serve a copy of this Order upon the Insolvency and Bankruptcy Board of India (IBBI) within fourteen days of receipt of this order. The IBBI shall take further necessary action upon receipt of a copy of this Order.
All the assets of Corporate Debtor have been disposed of and distributed in accordance with the code and rules and regulations framed thereunder and the final report has been submitted.
IA(IBC)(DIS.)/988(KB)2021 along with C.P. (IB)/186(KB)2017 is allowed with the above directions and the IA(IBC)(DIS.)/988(KB)2021 and C.P. (IB)/186(KB)2017 are hereby disposed of accordingly.
The Registry is directed to send e-mail copies of the order forthwith to all the parties and their Ld. Counsel for information and for taking necessary steps.
Certified Copy of this Order may be issued, if applied for with the Registry, upon compliance of all requisite formalities.
File be consigned to records.