Trux App Private Limited vs Safe Cargo Movers Private Limited

Per: Balraj Joshi, Member (Technical)

This Adjudicating Authority convened through hybrid mode.

IA(IBC)/1203(KB)2022 is an application filed by the Resolution Professional (“RP”) upon the instructions of the Committee of Creditors (“CoC”) seeking liquidation of the Corporate Debtor, viz., Safe Cargo Movers Private Limited (CIN: U74999WB2011PTC168764), on the ground that no Express of Interest (“EoI”) has been received till the last date of submission of EoI on 01/08/2022. This application is supported by an affidavit duly affirmed by the RP, which is placed at pages 17 to 19 of the application.

This Adjudicating Authority vide its order^{11.Annexure “A” at pages 24 to 28 of the application} dated 18/04/2022 on a Petition filed by Trux App Private Limited (Operational Creditor) under section 9 of the Insolvency and Bankruptcy Code, 2016 (‘the Code’) directed initiation of the Corporate Insolvency Resolution Process (‘CIRP’) against the Corporate Debtor and appointed Mr. Surendra Kumar Agarwal, Applicant herein, as the Interim Resolution Professional (‘IRP’). At the first CoC meeting^{22.Annexure “B” at pages 29 to 41 of the application} held on 19/05/2022, IRP was confirmed as RP.

In terms of section 15 of the Code, public announcement in Form ‘A’ was published on 20/04/2022 inviting claims from the creditors by 02/05/2022. The Committee of Creditors (“CoC”) was duly constituted as follows:

On receipt of one more claim from DCB Bank Ltd., Financial Creditor, on 10/05/2022. Upon verification of their claim DCB Bank Ltd. was included in the CoC and the CoC was duly reconstituted as follows: -

It is submitted by the Ld. Counsel appearing for the RP that public announcement^{33.Annexure “C” at pages 42 to 43A of the application} in Form G was published on 04/07/2022 in “Business Standard” (English) and “Amar Bangla” (Bengali) inviting claims from prospective resolution applicants. The last date of submission of EoI was on 01/08/2022. However, in response to the said public announcement no EoI was received.

The CoC at its 6^th meeting^{44.Annexure “D” at pages 44 to 49 of the application} held on 23/09/2022 had resolved to proceed for liquidation of the Corporate Debtor by 92.05% voting share appointing the Applicant as the Liquidator. The resolutions passed by the CoC at the aforesaid 6^th CoC meeting is reproduced hereinbelow: -

A copy of the written consent^{55.Annexure “F” at pages 51 to 52 of the application} dated 08/10/2022 along with Authorisation for Assignment^{66.Annexure “G” at pages 53 of the application} in Form B given by the RP in prescribed Form was also annexed to the application. Altogether, the IRP/RP had held Six CoC meetings before going for liquidation.

In terms of the order dated 02/12/2022 passed by this Adjudicating Authority, the applicant has duly submitted estimated liquidation cost approved by the CoC by way of a supplementary affidavit, which was duly affirmed by the RP on 13/12/2022.

In the meantime, the CIRP period has expired on 14/10/2022.

Section 33(1)(a) of the Code mandates that the Adjudicating Authority shall pass an order of liquidation where no resolution plan is received before the expiry of the CIRP. Sub-section (2) thereof requires the Adjudicating Authority to pass the liquidation order where the Resolution Professional intimates to the Adjudicating Authority the decision of the Committee of Creditors approved by not less than 66% of the voting share to liquidate the Corporate Debtor.

A conjoint reading of these two provisions, this Adjudicating Authority is left with no option but to order liquidation of the Corporate Debtor.

This Bench, therefore, hereby orders as follows: -

a. IA(IBC)/1203(KB)2022 filed by Mr. Surendra Kumar Agarwal, Resolution Professional of Safe Cargo Movers Private Limited, Corporate Debtor, is allowed and the Corporate Debtor is ordered to be liquidated in terms of section 33(2) of the Code read with sub-section (1) thereof.

b. Mr. Surendra Kumar Agarwal [Reg. No. IBBI/IPA-001/IP-P00825/2017-2018/11401], E-mail ID: surendraca@gmail.com, is hereby appointed as liquidator as provided under section 34(4)(c) of the Code, subject, however, to his possessing a valid Authorisation for Assignment (AFA) issued by the Insolvency Professional Agency (IPA) of which he is a professional member, in terms of regulation 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2019.

c. The Liquidator shall initiate liquidation process as envisaged under Chapter-III of the Code and the Insolvency & Bankruptcy Board of India (Liquidation Process) Regulations, 2016.

d. Public Notice shall be issued in the same newspapers, i.e. “Business Standard” (English), and “Amar Bangla” (Bengali), stating that the Corporate Debtor is in liquidation.

e. All the powers of the Board of Directors, and of key managerial persons, shall cease to exist in accordance with section 34(2) of the Code. All these powers shall henceforth vest in the Liquidator.

f. The personnel of the Corporate Debtor are directed to extend all assistance and co-operation to the Liquidator as required by him in managing the liquidation process of the Corporate Debtor.

g. On initiation of the liquidation process but 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, as provided in section 33(5) of the Code read with its proviso.

h. In accordance with section 33(7) of the Code, this liquidation order 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.

In terms of section 33(1)(b)(iii), the Liquidator shall file a copy of this Order with the Registrar of Companies, West Bengal, Kolkata, within whose jurisdiction the Corporate Debtor is registered. Additionally, the Registry shall also forward a copy of this Order to the Registrar of Companies, West Bengal, Kolkata.

The application bearing IA(IBC)/1203(KB)2022 shall stand disposed of in terms of the above directions.

CP(IB)/1227(KB)2019 to come up for filing of periodical report on 17/04/2023.

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, upon compliance of all requisite formalities.