In the matter of Kakade Developers Private Limited

National Company Law Tribunal7 September 2021

CitationIA No. 495/2021 in CP No. 4271 (IB)/MB/C/II/2018

Ratio decidendi

The rule this decision rests on

Where a resolution to extend the corporate insolvency resolution process fails to obtain the requisite majority of the Committee of Creditors, the corporate insolvency resolution process cannot be continued and the Adjudicating Authority must order liquidation of the corporate debtor under section 33 of the Insolvency and Bankruptcy Code, 2016.

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

Judgment

As delivered

IN THE NATIONAL COMPANY LAW TRIBUNALMUMBAI BENCH, COURT IIIA No. 495/2021INCP No. 4271 (IB)/MB/C-II/2018Under Section 33 of the Insolvency andBankruptcy Code, 2016 read with Rule11 of the National Company LawTribunal Rules, 2016Jitendra Palande …ApplicantINTERIM RESOLUTION PROFESSIONALKakade Developers Private Limited…ApplicantV/sPunjab National Bank & Anr.…Respondent No. 1Essel Infraprojects Limited…Respondent No. 2In the matter ofEssel Infraprojects LimitedRegistered office- 513/A, 5th Floor,Kohinoor City, Kirol Marg, Kurla(West), Mumbai – 400070…Financial CreditorV/sKakade Developers Private LimitedMUMBAI BENCH, COURT IIIA No. 495 of 2021 INCP No.4271 (IB)/MB/C-II/2018Registered office- 38, 5-3/D, New AjantaAvenue, Paud Road, Kothrud,Pune – 411 038…Corporate Debtor

Order Delivered on: 07.09.2021 Coram: Mr. Ashok Kumar Borah : Hon'ble Member Judicial Mr. Shyam Babu Gautam : Hon'ble Member Technical Appearance: For the Resolution Professional : Mr. Shikhil Suri, Advocate. For the Respondent (PNB) : Mr. Pankaj Vijayan, Advocate. ORDER Per: Shyam Babu Gautam, Member (Technical) 1. This is an application filed by the Interim Resolution Professional for Liquidation to the Corporate Debtor namely Kakade Developers Private Limited.

2. The Corporate Debtor was placed under CIRP vide order dated 19.03.2020, on an Application filed u/s- 7 of the IBC by Essel Infraprojects Limited by the Financial Creditor and the Applicant/RP was appointed as IRP on the same day.

MUMBAI BENCH, COURT II IA No. 495 of 2021 IN CP No.4271 (IB)/MB/C-II/2018

3. Subsequently, the Applicant made a Public Announcement dated 15.04.2020 in Form A in terms of Section 15 of the Code, pursuance of the public announcement, only two claims were received by the IRP from the Financial Creditors, one from the “Essel Infraprojects Limited” and one from “Punjab National Bank” (PNB) against the Corporate Debtor. The following is the Composition of first CoC:- CoC Voting Percentange Essel Infraprojects 60.39% Limited Punjab National Bank 39.61%

4. At the first CoC meeting held on 10.08.2020, the IRP was appointed as the RP. The Applicant/RP thereafter, in the 2nd CoC meeting held on 03.10.2020 and publication of Form G for invitation of expression of interest (EOI) along with the eligibility criteria of Prospective Resolution Applicant (PRA) was approved.

5. The Applicant submits that in accordance with the aforesaid public announcement made on 03.10.2020 whereby last date of receipt of EOI was 18.10.2020, however no Resolution Plan is received till date. 6. The third meeting of CoC was convened on 28.12.2020, during the said meeting, one of the agendas that was discussed and put to vote

MUMBAI BENCH, COURT II IA No. 495 of 2021 IN CP No.4271 (IB)/MB/C-II/2018 was to extend the CIR process by a period of 90 days or Liquidation of the Corporate Debtor. The following is the voting result on the said resolution proposed during the CoC meeting:- Participant Name Voting Share Approved/Not Approved Essel Infraprojects 60.39% Approved Limited Punjab National 39.61% Not Approved Bank

It was noted in the minutes that since the resolution for CIRP extension failed to get the requisite majority as prescribed by the Code, the IRP will file an application for liquidation of the Corporate Debtor which is a natural consequence of the operation of law. Therefore, it was decided to file application under section 33 of the Code for imitation of liquidation of the Corporate Debtor.

7. Considering the same and in totality of the circumstances this Bench is of the view that there is no alternative but to order that the Corporate Debtor be liquidated. Ordered accordingly.

8. The RP has given consent to act as liquidator in Form 2 the same has been placed on record. Therefore, this Adjudicating Authority hereby appoints Mr. Jitendra Palande, IBBI Registration No. IBBI/IPA-003/IP-N00028/2017-18/10188 as the Liquidator of the Corporate Debtor, Kakade Developers Private Limited.

MUMBAI BENCH, COURT II IA No. 495 of 2021 IN CP No.4271 (IB)/MB/C-II/2018

9. This order for liquidation 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.

10. The fees payable to the Liquidator shall be in accordance with Regulation 4 of the IBBI (Liquidation Process) Regulations, 2016.

11. The Liquidator shall submit progress reports as per Regulation 15 of the IBBI (Liquidation Process) Regulations, 2016.

12. The Liquidator is hereby Authorized to represent the Corporate Debtor before the Government Authorities, if need be.

13. Ordered Accordingly. Application for U/s. 33 (1) (b) is Allowed and with the aforesaid observation the present IA No. 495 of 2021 is stand disposed of. Dated 7th day of September, 2021

Sd/- Sd/- SHYAM BABU GAUTAM ASHOK KUMAR BORAH Member (Technical) Member (Judicial) Sushil/SAM

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