In the matter of Geetapuram Port Services Limited

National Company Law Tribunal17 April 2024

CitationIA-20(MB)2024 in C.P.(IB)-1161(MB)2022

Ratio decidendi

The rule this decision rests on

Where the Adjudicating Authority is intimated by the Resolution Professional, before confirmation of a resolution plan, that the committee of creditors has decided to liquidate the corporate debtor, and no resolution plan has been received or can be approved, Section 33(2) of the Insolvency and Bankruptcy Code, 2016 requires the Adjudicating Authority to pass a liquidation order under Section 33(1)(b)(i) to (iii); the Tribunal has no discretion to refuse such an order and must proceed to pass it.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

THE NATIONAL COMPANY LAW TRIBUNALMUMBAI BENCH: C-IVIA-20(MB)2024Under Section 33 of Insolvency &Bankruptcy Code, 2016.Mr. Manoj Sehgal…Resolution Professional/ApplicantIn the matter ofIN C.P.(IB)/1161(MB)2022JSW Steel Limited...Operational CreditorVs.Geetapuram Port Services PrivateLimited...Corporate DebtorOrdered pronounced on: 17.04.2024Coram:Ms. Anu Jagmohan Singh Shri Kishore VemulappalliHon’ble Member (Technical) Hon’ble Member (Judicial)Appearances:For the Applicant/RP/Liquidator : Adv. Nausheer Kohli a/wAdv. Saiee Nirgude for S & Tlegal.IN THE NATIONAL COMPANY LAW TRIBUNALMUMBAI BENCH: C-IVIA-20(MB)2024INC.P.(IB)/1161(MB)2022

O R D E R

1. This is an application filed by Mr. Manoj Sehgal, ResolutionProfessional of the Corporate Debtor seeking liquidation ofGeetapuram Port Services Private Limited under Section 33 ofInsolvency and Bankruptcy Code 2016 (hereinafter called as the“Code”).2. Brief facts of the Application are as follows:a. This Tribunal vide an order dated 23.06.2023, in CompanyPetition bearing C.P.(IB)/1161(MB)2022 filed under Section9 of the Code, by JSW Steel Limited (hereinafter referred toas the “Financial Creditor”), admitted the petition andCorporate Insolvency Resolution Process (CIRP) was initiatedagainst Geetapuram Port Services Private Limited [CIN:U63012MH1999PLC117964] (hereinafter called as the“Corporate Debtor”) and appointed Mr. Prakash V. Kukrejaas Interim Resolution Professional by this Tribunal and byan email dated 28.06.2023, Mr. Prakash V. Kukrejaexpressed his inability to IBBI (Insolvency and BankruptcyBoard of India) to facilitate the CIRP of the Corporate Debtorand accordingly Ms. Padma Ganesh was appointed as theIRP vide an order dated 17.07.2023.IN THE NATIONAL COMPANY LAW TRIBUNALMUMBAI BENCH: C-IVIA-20(MB)2024INC.P.(IB)/1161(MB)2022b. Pursuant to the above said Order, the erstwhile IRP hereinissued a Public Announcement in two Newspapers, on29.07.2023, in FORM A, thereby calling upon the Creditorsof the Corporate Debtor to file their claims, along with proof.Pursuant to the same, the IRP has received only one claimfrom the Operational Creditor i.e. JSW Steel Limited of theCorporate Debtor.c. Accordingly, the IRP in the First CoC Meeting which wasconducted on 25.08.2023 informed the CoC for theappointment of IRP as RP (Resolution Professional) as perthe Code. The CoC being the sole member voted physicallyand appointed Mr. Manoj Sehgal as RP of the CorporateDebtor.d. Subsequently, this tribunal passed an order appointing Mr.Manoj Sehgal as the RP vide order dated 21.09.2023 andaccordingly took charge of the Corporate Debtor from IRP i.e.Ms. Padma Ganesh on 03.10.2023. Meanwhile, the IRP MsPadma Ganesh issued Form G - Invitation for Expression ofInterest (EoI) dt. 25.09.2023; and the last date forsubmission of EOI was fixed on 10.10.2023.e. It is submitted that the RP has received EOI from 5 PRA’sout of which 3 PRA’s were selected in the list of finalIN THE NATIONAL COMPANY LAW TRIBUNALMUMBAI BENCH: C-IVIA-20(MB)2024INC.P.(IB)/1161(MB)2022Resolution Applicant. The last date for the submission of theResolution Plan was 09.12.2023, however no resolution planwere received by the RP.f. It is submitted that in 5th CoC meeting held on 12.12.2023wherein the CoC resolved to republish invitation forsubmission of expression of interest with extended timelinesfor submission of resolution plan till 12.02.2024.Subsequently, EOI was republished on 14.12.2023 inEnglish (Financial Express- Mumbai, Pune and Ahmedabad)and regional (Navakal- Mumbai) Language. In spite ofrepublishing Form G, no Resolution Plans was received bythe RP and that the applicant was left with no other optionexcept to opt for Liquidation.g. Ld. Counsel for the Applicant stated that in the 6th meetingof the CoC held on 31.01.2024, that the agenda of theLiquidation of the Corporate Debtor was put up before theCoC, the same was approved with the majority of 100% ofthe votes to proceed with the liquidation of the CorporateDebtor. The relevant extract of the Resolution is reproducedbelow:“RESOLVED THAT pursuant to Section 33, subsection(1)(a) of the Insolvency and Bankruptcy Code,2016

IN THE NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH: C-IV IA-20(MB)2024 IN C.P.(IB)/1161(MB)2022 and other applicable provisions, if any, of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, (“Liquidation Process Regulation”) Committee of Creditors hereby approves that Geetapuram Port Services Limited, Corporate Debtor be liquidated subject to approval of Hon’ble Adjudicating Authority. RESOLVED FURTHER THAT the Resolution Professional is authorized to file the Application for Liquidation of the Corporate Debtor before Hon’ble AA and to do all such acts, deeds or things which may be required in this purpose.” 3. Hence, the present Interlocutory Application has been filed for seeking Liquidation of the Corporate Debtor. 4. This Bench is vested with the powers to pass an order of Liquidation of the Corporate Debtor; since, no Resolution Plan could be brought forth and voted for, and in the absence of any Resolution Plan on the table, the order of liquidation shall be passed by this Adjudicating Authority under section 33 of the Code. The said Section is quoted below for the convenience and the ready reference:

“(1) Where the Adjudicating Authority, — (a) before the expiry of the insolvency resolution process period or the maximum period permitted for completion of the corporate insolvency resolution process under section 12 or the fast track corporate insolvency resolution process under section 56, as the case may be, does not receive a resolution plan under sub-section (6) of section 30; or IN THE NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH: C-IV IA-20(MB)2024 IN C.P.(IB)/1161(MB)2022 (b) rejects the resolution plan under section 31 for the non-compliance of the requirements specified therein, it shall— (i) pass an order requiring the corporate debtor to be liquidated in the manner as laid down in this Chapter; (ii) issue a public announcement stating that the corporate debtor is in liquidation; and (iii) require such order to be sent to the authority with which the corporate debtor is registered. (2) Where the resolution professional, at any time during the corporate insolvency resolution process but before confirmation of resolution plan, intimates the Adjudicating Authority of the decision of the committee of creditors to liquidate the corporate debtor, the Adjudicating Authority shall pass a liquidation order as referred to in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1)”.

5. In that view of the matter, having considered the submissions and on perusal of averments made in the present Interlocutory Application; this Bench is satisfied and is of the considered opinion that the present Interlocutory Application is in consonance with Section 33(2) of the Code. Accordingly, this Authority has left with no option except to pass an order for Liquidation of the Corporate Debtor Company in the manner laid down in Chapter III of the Code considering the fact there is no Resolution Plan for consideration and CoC does not foresee any possibility of getting Plans for the Corporate Debtor. Hence ordered. ORDER a) The Application be and the same is allowed. The Corporate Debtor, Geetapuram Port Services Limited, shall be liquidated in the manner as laid down in Chapter-III of the Code.

IN THE NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH: C-IV IA-20(MB)2024 IN C.P.(IB)/1161(MB)2022 b) It is to be noted that, as per IBBI vide its circular no. LIQ- 12011/214/2023-IBBI/840 dated 18.07.2023 in the exercise of its powers conferred u/s 34(4)(b) of the Code had recommended that an IP other than RP/ IRP may be appointed as a liquidator in all the cases where the Liquidator (read liquidation) order is passed henceforth. In view of this circular of IBBI, we hereby appoint Mr. Girish Krishna Hingorani, having Registration No. IBBI/IPA-002/IP-N00842/2019-2020/12695 and address at 5 C Mehta Sadan ,S H Parelkar Marg ,Dadar ,Mumbai City,Maharashtra ,400028 as the Liquidator to conduct liquidation process of “Geetapuram Port Services Limited” as provided under Section 34(4) of the Code. c) 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. d) The Moratorium declared under Section 14 of the IBC 2016 shall cease to operate here from. e) Liquidator shall issue public announcement stating that Corporate Debtor is in liquidation. f) The Liquidator shall endeavour to sale the Company as a going concern during the liquidation in terms of Regulation 32A of the Liquidation Process Regulations.

In case, he is not able to do so within a period of 90 days from this date, he shall proceed in IN THE NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH: C-IV IA-20(MB)2024 IN C.P.(IB)/1161(MB)2022 accordance with clauses (a) to (d) of Regulation 32 of the Liquidation Process Regulations. g) Subject to Section 52 of the Code no suit or other legal proceedings shall be instituted by or against the Corporate Debtor. This shall however not apply to legal proceedings in relation to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. h) All powers of the Board of Directors, Key Managerial Personnel and partners of the Corporate Debtor shall cease to have effect and shall be vested in the Liquidator. i) The Liquidator shall exercise the powers and perform duties as envisaged under Sections 35 to 50 and 52 to 54 of the Code read with the Liquidation Process Regulations. j) Personnel connected with the Corporate Debtor shall extend all assistance and cooperation to the Liquidator as will be required for managing its affairs. k) This Order shall be deemed to be a notice of discharge to the officers, employees and workmen of the Corporate Debtor, except when the business of the Corporate Debtor is continued during the liquidation process by the Liquidator. l) The Liquidator shall submit Progress Reports as per Regulation 15 of the Insolvency and Bankruptcy Board of India (Liquidation

IN THE NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH: C-IV IA-20(MB)2024 IN C.P.(IB)/1161(MB)2022 Process) Regulations, 2016, and shall apprise the Bench about the Liquidation Process of the Corporate Debtor. m) The Liquidator is hereby Authorized to represent the Corporate Debtor before the Government Authorities, if need be. n) Registry shall furnish a copy of this Order to: i. Insolvency and Bankruptcy Board of India, New Delhi; ii. Regional Director (Western Region), Ministry of Corporate Affairs; iii. Registrar of Companies & Official Liquidator, Maharashtra; iv. Registered Office of the Corporate Debtor; and v. Liquidator, Mr. Girish Krishna Hingorani. 6. With the aforesaid observations and directions, the Interlocutory Application bearing IA No. 20 of 2024 IN C.P.(IB)/1161(MB)2022, stands disposed of as Allowed. There would however be no order as to costs. Ordered Accordingly

Sd/- Sd/- ANU JAGMOHAN SINGH Kishore Vemulappalli Member (Technical) Member (Judicial)

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