Kautilya Industries Pvt. Ltd vs Parasrampuriya Synthetic Ltd. & Anr

Kautilya Industries Pvt. Ltd. ...Appellant

Vs.

Parasrampuriya Synthetic Ltd. & Anr. ...Respondents

Present: For Appellant: - Mr. Abhishek Anand, Advocate and Mr. Raman Aggarwal, C.A.

For Respondents: - Mr. Chandrashekhar, Advocate. Mr. Dinkar Singh, Advocate for R-2.

Mr. Ashutosh Kumar and Mr. Pulkit Agrawal, Advocates for R-1.

Mr. Brijesh Kumar Tamber and Mr. Khyati, Advocates for R-10.

Mr. Sidhartha Barua, Advocate for R-3 & 13. Mr. Parveen Kumar Mehdiratta, Advocate for R-4 & 11.

O R D E R

31.07.2019─ This appeal has been filed by 'Kautilya Industries

Private Limited', one of the 'Resolution Applicants' against the order

dated 15th February, 2019 passed by the Adjudicating Authority

(National Company Law Tribunal), Jaipur, whereby application under

Section 33(2) of the Insolvency and Bankruptcy Code, 2016 ("I&B Code"

for short) filed by the 'Resolution Professional' for liquidation of 'M/s.

Parasrampuriya Synthetic Limited'- ('Corporate Debtor') has been

approved.

Contd/-.............

-2-

2. Learned counsel appearing on behalf of the Appellant submitted

that the order of liquidation was passed on the ground that 270 days

have already been completed on 10th February, 2019, but the

Adjudicating Authority failed to notice that there was an interim order

passed by the Hon'ble High Court of Judicature for Rajasthan, Bench at

Jaipur, on 27th September, 2018 which was vacated on 3rd January,

2019. Therefore, according to the Appellant, further revised 'Resolution

Plan' submitted by the Appellant on 4th February, 2019 could have been

re-considered if the period between 27th September, 2018 to 3rd

January, 2019 i.e. 97 days is excluded for the purpose of counting the

period of 270 days.

3. Learned counsel appearing on behalf of 2nd Respondent- 'Asset

Reconstruction Company (India) Limited' submitted that the 'Financial

Creditors' having voting shares of about 68% are agreeable to re-

consider the revised plan if the aforesaid period is excluded. However,

such submission has been opposed by learned counsel appearing on

behalf of 'Stressed Assets Stabilization Fund'-(3rd Respondent), 'SBI

Funds Management Pvt. Ltd.'-(13th Respondent), 'Specified Undertaking

of the UnitTrust of India'-(4th Respondent), 'UTI Trustee Company Pvt.

Ltd.'-(11th Respondent) and 'ICICI Bank Debenture Trustee'-(7th

Respondent).

Company Appeal (AT) (Insolvency) No. 282 of 2019 -3-

4. From the record we find that the 'Committee of Creditors' with its

voting shares of 88.92 percent decided that the 'Resolution Professional'

should file application for liquidation under Section 33(2). Now some of

them want exclusion to again re-consider one or other revised plan

purported to have been submitted by the Appellant a week prior to 270

days.

5. The record shows that the Hon'ble High Court of Judicature for

Rajasthan, Bench at Jaipur, by impugned order dated 27th September,

2018 passed order of winding-up in Company Petition No. 28/1999 and

an 'Official Liquidator' was appointed to take over the possession of the

assets. No order of prohibition was made specifically prohibiting the

'Committee of Creditors' not to consider the 'Resolution Plan'.

6. On 3rd January, 2019, the Hon'ble High Court of Judicature for

Rajasthan, Bench at Jaipur, taking into consideration the fact that the

'Resolution Professional' has been appointed under the 'I&B Code' by

the Adjudicating Authority on 17th May, 2018, recalled the earlier order

and disposed of all the Company Petitions to enable the 'Resolution

Process' to continue.

7. From the aforesaid fact, it appears that there was no specific

prohibition on the 'Committee of Creditors' for considering one or other

'Resolution Plan'. They held meeting after the first order of the Hon'ble

High Court of Judicature for Rajasthan, Bench at Jaipur, i.e. on

Company Appeal (AT) (Insolvency) No. 282 of 2019 -4-

27th September, 2018 and on different dates i.e. 8th October, 2018, 22nd

October, 2018, 30th October, 2018, 6th November, 2018, 10th December,

2018 and 18th January, 2019.

8. The 'Resolution Plan' of the Appellant as was placed was not

accepted.

9. In view of the aforesaid facts, we find that no case is made out for

exclusion of any of the period for the purpose of counting 270 days

which stands completed on passing the impugned order of liquidation.

However, this order will not come in the way of the Liquidator

who is required to follow the provisions of Sections 35, 36, 37, 38, 39 &

40 of the 'I&B Code' and Section 230 of the Companies Act as ordered

by this Appellate Tribunal passed in "Y. Shivram Prasad Vs. S.

Dhanapal & Ors.─ Company Appeal (AT) (Insolvency) No. 224 of

2018".

10. The Liquidator is also required to ensure that during the

liquidation the 'Corporate Debtor' remains a going concern and in case

no Scheme is approved under Section 230 of the Companies Act, 2013,

then to sell the Company as going concern alongwith employees as

ordered in "Y. Shivram Prasad Vs. S. Dhanapal & Ors." (Supra)

before taking recourse of final liquidation.

Company Appeal (AT) (Insolvency) No. 282 of 2019 -5-

11. It is open to the Liquidator/class of creditors such as, 'Committee

of Creditors' and 'Financial Creditors' or members or class of members

of the 'Corporate Debtor' to consider the 'Resolution Plans' as were filed

by one or other 'Resolution Applicants' but were not taken up for the

purpose of preparation of Scheme, but ensure that such Scheme should

not violate the Statement of Objects and Reasons of the 'I&B Code'

which is the maximization of the assets of the 'Corporate Debtor',

feasibility and viability of the Scheme and balancing the stakeholders as

observed in "Y. Shivram Prasad Vs. S. Dhanapal & Ors." (Supra).

12. We make it clear that we have not decided what arrangement or

Scheme is to be considered by accepting any one or other particular

plan, which depends on members of the creditors or members of the

'Corporate Debtor' to decide in consultation with the Liquidator.

The appeal stands disposed of.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) Member(Judicial)

(Kanthi Narahari) Member(Technical) Ar/g Company Appeal (AT) (Insolvency) No. 282 of 2019