Varsana Ispat Limited vs Varsana Employee Welfare Association & ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal(AT) (Ins) No. 885 of 2020

IN THE MATTER OF: Varrsana Ispat Ltd - in Liquidation (through Mr. Anil Goel, Liquidator) E-10A, Kailash Colony, Greater Kailash New Delhi - 110048 ...Appellant

Vs.

1.Varrsana Employee Welfare Association Plot No.71, Survey No.182, Balaji Residency Behind Jalaram Temple Meghpar Borichi, Anjar, Gujarat - 370110 ...Respondent No.1

2.Omkara Asset Reconstruction Pvt. Ltd. No.9, M.P Nagar, First Street, Kongu Nagar Extn, Tirupur 641607 Also At: C/515, Kanakia Zillion, Junction Of JBS Road and CST Road, BKC Annexe, Near Equinox, Kalina, Kurla (West) Mumbai - 400 070 By virtue of Assignment of debt, in substitution for: Central Bank of India (Erstwhile Performa R1) and Indian Overseas Bank (Erstwhile Performa R2) ...Performa Respondent No. 2

3.UCO Bank Flagship Corporate Branch, No.2 India Exchange Place, Kolkata - 700 001 West Bengal ...Performa Respondent No.3

4.Pubjab National Bank For United Bank of India (Since merged with Punjab National Bank) Stressed Asset Management Branch, Kolkata 2nd Floor, 4, N C Dutta Sarani, Kolkata - 700 001 West Bengal ...Performa Respondent No.4

Company Appeal (AT) (Ins) No. 885 of 2020 Page 1 of 33 5.Union Bank of India For Corporation bank (Since Merged with Union Bank of India) "Centre Point", Building 1st Floor 21, Hemant Basu Sarani, Kolkata - 700 001, West Bengal ...Performa Respondent No.5

6.SBER Bank Upper Ground Floor, Dr. Gopal Das Bhawan, 28 Barakhamba Road, New Delhi - 110001 ...Performa Respondent No.6

7.Akshay Jhunjhunwala Director and representative of shareholders 58A/1, Sainik Farm, New Delhi - 110062 ...Respondent No.7

Present: For Appellant : Mr. Gaurav Mitra, Mr. Nipun Gautam, Ms. Shriya Ray chaudhuri, Advocates Mr. Anil Goel, Liquidator in person

Respondents : Mr. Rishav Banerjee, Mr. Patita Paban Bishwal, Mr. Akshat Singh, Mr. Bhanu Gupta and Dacchita Shahi, Advocates for Respondent No. 1 Mr. RP Agarwal, Ms. Manisha Agarwal, Ms. Vidhisha Haitwal, Advocates for R2 Ms. Aarti Singh, Mr. Aakash Deep Singh Roda, Mr. Basant Pal Singh, Ms. Pooja Singh, Advocates for Respondent No. 5. Mr. Sanjib Das, Ms. Sukriti Dutta and Mr. Ramesh Chandra Prusti Advocates for Respondent No. 6. Ms. Shreyas Mehrotra, Advocates for R7 Mr. Shaunak Mitra, Advocates for Respondent No. 8.

DR. ASHOK KUMAR MISHRA, TECHNICAL MEMBER

1. The present appeal has been filed by the Appellant- 'Varrsana Ispat Limited', through its

Liquidator Mr. Anil Goel under Section 61 of the 'Insolvency and Bankruptcy Code, 2016'

Company Appeal (AT) (Ins) No. 885 of 2020 Page 2 of 33 (in short 'Code') against the impugned order dated 26.06.2020 passed by the 'Adjudicating

Authority' (National Company Law Tribunal), Kolkata Bench in I.A No.531/KB/2020 in

CP No. (IB) 543/KB/2017. The Appellant has sought the following reliefs :

a. The Appellate Authority be pleased to allow the present appeal and set

aside the impugned order dated 26th June, 2020, passed by the Adjudicating

Authority, Kolkata bench in IA No.531/KB/2020 in CP No. (IB)

543/KB/2017, qua para 21 (a) and (b) of the order;

b. The Appellant Authority be pleased to pass an order declaring the

distribution made by the Appellant as per the provision of Insolvency and

Bankruptcy Code 2016 is valid.

c. The Appellate Authority be pleased to pass any other order in the facts and

circumstances of the present Appeal and in the interest of the justice and

equity.

2. While passing the impugned order dated 26.06.2020 in I.A No. 531/KB/2020 in CP No.

(IB) 543/KB/2017 at paragraphs 20 & 21 had observed the following:

"20. In view of the matter discussed above, and the position of

law, we come to a conclusion that the disbursement by the

liquidator from the working capital and profit kept in the

account of the liquidator/CD before liquidating the assets is not

in accordance with the provisions of the Code and Regulations.

So also we hold that the pay cut from the salary of the

employees of the CD is arbitrary and not just and proper. In the

said background a question arises as to whether the financial

creditors who had received the fund are to be ordered to

Company Appeal (AT) (Ins) No. 885 of 2020 Page 3 of 33 refund? In this regard it is good to refer to Regulation 43.

Reg.43 states that the stakeholders shall return the monies after

distribution if the stakeholders are found to be not entitled to at

the time of distribution. So no doubt the financial creditors are

bound to return any monies received during distribution which

they were not entitled to receive during distribution. However,

in the case in hand since the CD being in operation and there

is enough working capital as submitted by the liquidator (About

40 crores) there is no need to return. However, in the peculiar

nature and circumstances brought out in the instant case, it

appears to us that the amounts received by the respective

financial creditors shall be kept by them in an Interest bearing

account of the CD. It would meet the ends of justice in the

nature of this case. However, the liquidator is found liable to

make good the portion of salary deducted from them with

applicable bank interest.

21. In view of the matter, we are allowing the application as

per the following orders:

a. The distribution of funds from working capital and profit to

the stakeholders until assets have been liquidated, and till the

liquidator realizes the complete liquidation value is not in

conformity with the provisions of the Code and Regulations;

b. The stakeholders/financial creditors who are in receipt of the

funds shall keep the amount received by them in an interest

Company Appeal (AT) (Ins) No. 885 of 2020 Page 4 of 33 bearing account of the CD, and returnable as per Regulation

43, if need arises for operating the CD;

c. The liquidator is directed to pay the portion of salary

deducted from the salary of the employees with applicable bank

interest till the date of payment.

IA (IB) No. /KB/2020 is disposed of accordingly.

The Registry is directed to send e-mail copies of the order

forthwith to all the parties."

3. It is the case of the Appellant/Liquidator that liquidation of the Corporate Debtor (CD) was

initiated on 06.08.2019 and 'Liquidation Account' was opened on 28.08.2019 to operate

receipts and payments. He constituted a 'Stakeholders Constitution Committee' (SCC) on

07.10.2019 as per Regulation 31A of the 'IBBI (Liquidation Process) Regulations'. It was

discussed and decided in the 'SCC' that the CD shall be kept as a going concern and Rs.20

crore distribution would be done as per Section 53 of the Code (appearing at page no. 105,

115-116, 119 & 121 of the Appeal Paper Book). 'M/s. Varrsana Employees Welfare

Association - R1' filed IA No. 1546/KB/2019 in CP No.(IB) 543/KB/2017 that the

company is a going concern and there is possibility of revival of CD as the Liquidator

taking steps to invite scheme from interested party and Liquidator has admittedly realized

substantial amounts of money of Rs.18 crore and the amount is disbursed, the cash flow of

the CD will have no adverse impact on the operation of the Company.

4. However, the Adjudicating Authority has passed an order vide order dated 14.01.2020 in

C.A(IB) No.1546/KB/2019 in CP (IB) No.543/KB/2017 Clause 4 & 5 enumerated below

:

Company Appeal (AT) (Ins) No. 885 of 2020 Page 5 of 33 "Clause 4- We have heard the Appellant and Non-applicant

including Learned counsel for the Liquidator and after hearing the

parties, we are of the view that there is no justification for the

Liquidator to withhold the aforesaid amount of Rs. 18.00 crores

and odd, lying with the Liquidator and it is directed that the same

may be utilized for the operations of the Corporate Debtor to

remain Corporate Debtor as going concern for distribution

amongst stakeholders in equal manner as per provisions of Section

53 of the Code, which would include the claims of the employees,

if any.

Clause 5. - With the aforesaid observations the application CA(IB)

No.1546/KB/2019 stands disposed of accordingly."

5. It was submitted by the Liquidator in compliance with the aforesaid order and as discussed

in the '3rd SCC Meeting' on 03.02.2020, he disbursed Rs. 21 Crore on 04.02.2020 and Rs.

5 Crore on 16.06.2020. While disbursing the amount to the Stakeholders, he took and

undertaking from them in accordance with Regulation 43. Rs.21 Crore has been distributed

to the following banks:

Sl. Name of the Financial Creditor Amount

1. Central Bank of India 48,91,920

2. Corporation Bank of India 3,26,72,311

3. UCO Bank 7,26,35,454

4. United Bank of India 2,08,17,181

5. Indian Overseas Bank 7,89,83,134

Total amount for distribution 21,00,00,000

Company Appeal (AT) (Ins) No. 885 of 2020 Page 6 of 33

6. It is also submitted that the R1 once again filed another Application bearing IA

No.531/2020 against the Liquidator for wrongful deduction of salary and distribution

during the process of the liquidation. The Adjudicating Authority vide its order dated

26.06.2020 passed the following orders:

"20. In view of the matter discussed above, and the position of

law, we come to a conclusion that the disbursement by the

liquidator from the working capital and profit kept in the

account of the liquidator/CD before liquidating the assets is

not in accordance with the provisions of the Code and

Regulations. So also we hold that the pay cut from the salary

of the employees of the CD is arbitrary and not just and proper.

In the said background a question arises as to whether the

financial creditors who had received the fund are to be ordered

to refund? In this regard it is good to refer to Regulation 43.

Reg.43 states that the stakeholders shall return the monies

after distribution if the stakeholders are found to be not entitled

to at the time of distribution. So no doubt the financial

creditors are bound to return any monies received during

distribution which they were not entitled to receive during

distribution. However, in the case in hand since the CD being

in operation and there is enough working capital as submitted

by the liquidator (About 40 crores) there is no need to return.

However, in the peculiar nature and circumstances brought

out in the instant case, it appears to us that the amounts

Company Appeal (AT) (Ins) No. 885 of 2020 Page 7 of 33 received by the respective financial creditors shall be kept by

them in an Interest bearing account of the CD. It would meet

the ends of justice in the nature of this case. However, the

liquidator is found liable to make good the portion of salary

deducted from them with applicable bank interest.

21. In view of the matter, we are allowing the application as

per the following orders:

a. The distribution of funds from working capital and profit to

the stakeholders until assets have been liquidated, and till the

liquidator realizes the complete liquidation value is not in

conformity with the provisions of the Code and Regulations;

b. The stakeholders/financial creditors who are in receipt of

the funds shall keep the amount received by them in an interest

bearing account of the CD, and returnable as per Regulation

43, if need arises for operating the CD;

c. The liquidator is directed to pay the portion of salary

deducted from the salary of the employees with applicable

bank interest till the date of payment.

IA (IB) No. /KB/2020 is disposed of accordingly.

The Registry is directed to send e-mail copies of the order

forthwith to all the parties."

7. The Liquidator has also convened a meeting of KMPs of the CD who are running the steel

plant and discussed about the working capital available with the CD. That it was found that

the working capital available with the CD was sufficient for the requirement. Therefore, it

Company Appeal (AT) (Ins) No. 885 of 2020 Page 8 of 33 was decided that funds are not required for the operations of the CD and should be

distributed as per the order of the Adjudicating Authority (Appearing at page no. 74-76 of

the appeal paper book).

8. The Liquidator has also submitted that pursuant to the decisions taken in the SCC Meetings

and old debts of the CD had been recovered by him. Therefore, these disbursements were

made in compliance with the provisions of the Code as well as the Liquidation Regulations

as is indicated herein below:

(I) All disbursement was made only pursuant to the decisions taken in the SCC

Meetings.

Contention of the R1 and observations made in the impugned order regarding

distribution of funds from working capital and profit to the stakeholders until assets

have been liquidated and till the liquidator realizes the complete liquidation value

being contrary to the provisions of the Code is wholly misplaced as the Liquidator

in consultation with the SCC was bestowed with the power to distribute the money

to the stakeholders. The SCC in its 1st and 2nd meeting on 12.11.2019 and

17.12.2019 specifically discussed disbursal of amounts received from old debtors

to the stakeholders and as director by the order dated 14.01.2020 and the 3rd SCC

Meeting, disbursement of Rs. 26 crores was made in two tranches:

a.04.06.2020 wherein a sum of INR 21 crores was disbursed.

b.16.06.2020 wherein in a sum of INR 5 Crores was disbursed.

The aforesaid, is clearly indicative of the fact that the Liquidator has in no manner

acted on its own accord and has in fact acted in compliance with the discussions

that toll place in the SCC Meetings.

(II) Liquidator is bound by the provisions of the Code and Liquidation Regulations.

Company Appeal (AT) (Ins) No. 885 of 2020 Page 9 of 33 A bare perusal of Regulations 39 of the Liquidator Regulations states that the

Liquidator shall recover and realize all assets of and dues to the CD in a time-bound

manner for maximization of value for the stakeholders. Notably, after immense

efforts made by the Liquidator, a recovery from sundry debtors was made and an

amount of INR 26 Crores was disbursed in two tranches. Pertinently, the Liquidator

Regulations also prescribed a strict timeline (i.e.90 days from the receipt of the

amount) within such moneys received are to be distributed to the stakeholders. In

the present case the Liquidator has complied with the said requirement and

disbursed the same. Therefore, keeping the distribution pending until the

conclusion of the liquidation process would be wholly contrary to the provisions of

the Code and the Liquidation Regulations.

(III) Balance Salary and Interest has been paid to the employees therefore, employees

have no locus to challenge the disbursement of money.

As directed by the Adjudicating Authority vide the impugned order dt 14 th January

2020 , the Liquidator has disbursed the amount that had been deducted from the

salary of the employees of the CD in June 2020 itself. While there was a minor

delay in making payment of the interest accrued, the same has been paid to them in

September, 2020. Pertinently, the SCC Meeting dated 01.10.2020 also records that

the payment has been made to the employees as directed vide impugned order.

Furthermore, it is also to highlight herein that vide order dated 28.05.2021, the

Adjudicating Authority has held that since there is no subsisting claim of the

employees, there is no question of including a representative of the workmen and

employees on the SCC. Thus, the employees today have no locus to challenge the

decisions of the SCC/disbursement of amounts to the stakeholders. It is also

Company Appeal (AT) (Ins) No. 885 of 2020 Page 10 of 33 apposite to highlight herein that currently, the CD is running smoothly and all the

employees are getting their salaries on a regular basis. Therefore, distribution of the

surplus funds of the Financial Creditors, shall in no manner prejudice the employees

and workmen (appearing in order dated 28.05.2021 passed by the Adjudicating

Authority).

It is important to highlight that all CIRP costs and Liquidator costs have been met.

There are no claims filed on behalf of workmen dues. As such under Section 53 of

the Code, there is no fetter on payment to the Secured Creditors from idle funds

under the priority set out in Section 53 of the Code. As mentioned above, the

employees who have no claims pending have no locus to challenge this

disbursement.

9. Liquation Estate encompasses all the assets over which the CD has ownership right

including assets which appearing in their Balance Sheets, reference is made to Section 35

& 36 of the Code as depicted herein below:

"Section 35: Powers and duties of liquidator.

(1) Subject to the directions of the Adjudicating Authority, the liquidator shall have the following powers and duties, namely:--

(a) to verify claims of all the creditors;

(b) to take into his custody or control all the assets, property, effects and actionable claims of the corporate debtor;

(c) to evaluate the assets and property of the corporate debtor in the manner as may be specified by the Board and prepare a report;

(d) to take such measures to protect and preserve the assets and properties of the corporate debtor as he considers necessary;

(e) to carry on the business of the corporate debtor for its beneficial liquidation as he considers necessary;

Company Appeal (AT) (Ins) No. 885 of 2020 Page 11 of 33

(f) subject to section 52, to sell the immovable and movable property and actionable claims of the corporate debtor in liquidation by public auction or private contract, with power to transfer such property to any person or body corporate, or to sell the same in parcels in such manner as may be specified;

[Provided that the liquidator shall not sell the immovable and movable property or actionable claims of the corporate debtor in liquidation to any person who is not eligible to be a resolution applicant.]

(g) to draw, accept, make and endorse any negotiable instruments including bill of exchange, hundi or promissory note in the name and on behalf of the corporate debtor, with the same effect with respect to the liability as if such instruments were drawn, accepted, made or endorsed by or on behalf of the corporate debtor in the ordinary course of its business;

(h) to take out, in his official name, letter of administration to any deceased contributory and to do in his official name any other act necessary for obtaining payment of any money due and payable from a contributory or his estate which cannot be ordinarily done in the name of the corporate debtor, and in all such cases, the money due and payable shall, for the purpose of enabling the liquidator to take out the letter of administration or recover the money, be deemed to be due to the liquidator himself;

(i) to obtain any professional assistance from any person or appoint any professional, in discharge of his duties, obligations and responsibilities;

(j) to invite and settle claims of creditors and claimants and distribute proceeds in accordance with the provisions of this Code;

(k) to institute or defend any suit, prosecution or other legal proceedings, civil or criminal, in the name of on behalf of the corporate debtor;

(l) to investigate the financial affairs of the corporate debtor to determine undervalued or preferential transactions;

(m) to take all such actions, steps, or to sign, execute and verify any paper, deed, receipt document, application, petition, affidavit, bond or instrument and for such purpose to use the common seal, if any, as may be necessary for liquidation, distribution of assets and in discharge of his duties and obligations and functions as liquidator;

(n) to apply to the Adjudicating Authority for such orders or directions as may be necessary for the liquidation of the corporate debtor and to report the progress of the liquidation process in a manner as may be specified by the Board; and

Company Appeal (AT) (Ins) No. 885 of 2020 Page 12 of 33

(o) to perform such other functions as may be specified by the Board. (2) The liquidator shall have the power to consult any of the stakeholders entitled to a distribution of proceeds under section 53: Provided that any such consultation shall not be binding on the liquidator: Provided further that the records of any such consultation shall be made available to all other stakeholders not so consulted, in a manner specified by the Board. Section 36: Liquidation estate.

(1) For the purposes of liquidation, the liquidator shall form an estate of the assets mentioned in sub-section (3), which will be called the liquidation estate in relation to the corporate debtor.

(2) The liquidator shall hold the liquidation estate as a fiduciary for the benefit of all the creditors.

(3) Subject to sub-section (4), the liquidation estate shall comprise all liquidation estate assets which shall include the following:--

(a) any assets over which the corporate debtor has ownership rights, including all rights and interests therein as evidenced in the balance sheet of the corporate debtor or an information utility or records in the registry or any depository recording securities of the corporate debtor or by any other means as may be specified by the Board, including shares held in any subsidiary of the corporate debtor;

(b) assets that may or may not be in possession of the corporate debtor including but not limited to encumbered assets;

(c) tangible assets, whether movable or immovable;

(d) intangible assets including but not limited to intellectual property, securities (including shares held in a subsidiary of the corporate debtor) and financial instruments, insurance policies, contractual rights;

(e) assets subject to the determination of ownership by the court or authority;

(f) any assets or their value recovered through proceedings for avoidance of transactions in accordance with this Chapter;

(g) any asset of the corporate debtor in respect of which a secured creditor has relinquished security interest;

(h) any other property belonging to or vested in the corporate debtor at the insolvency commencement date; and

Company Appeal (AT) (Ins) No. 885 of 2020 Page 13 of 33

(i) all proceeds of liquidation as and when they are realised. (4) The following shall not be included in the liquidation estate assets and shall not be used for recovery in the liquidation:--

(a) assets owned by a third party which are in possession of the corporate debtor, including--

(i) assets held in trust for any third party;

(ii) bailment contracts;

(iii) all sums due to any workman or employee from the provident fund, the pension fund and the gratuity fund;

(iv) other contractual arrangements which do not stipulate transfer of title but only use of the assets; and

(v) such other assets as may be notified by the Central Government in consultation with any financial sector regulator;

(b) assets in security collateral held by financial services providers and are subject to netting and set-off in multi-lateral trading or clearing transactions;

(c) personal assets of any shareholder or partner of a corporate debtor as the case may be provided such assets are not held on account of avoidance transactions that may be avoided under this Chapter;

(d) assets of any Indian or foreign subsidiary of the corporate debtor; or

(e) any other assets as may be specified by the Board, including assets which could be subject to set-off on account of mutual dealings between the corporate debtor and any creditor."

10. What the Appellant is submitted is that Section 53 of the Code only priorities payment in

a specific manner and there is no requirement that such distributions must be done only

after the complete 'Liquidations Estate' is sold. On the contrary distribution of realized

'Liquation Estate' asset must take place within 90 days of realization any interpretation

contrary to this would defeat the purpose of the Code and the purport of the legislature.

'Sale of Liquidation Estate' also includes recovery from 'Sundry Debtors'. It was further

submitted that since all the assets of the CD have been attached by the 'Enforcement

Company Appeal (AT) (Ins) No. 885 of 2020 Page 14 of 33 Directorate' (ED), Liquidator has not sold any assets of the CD. The funds that were

disbursed where recovered from old debtors. Despite the disbursement of the funds to

'Stakeholders', the CD continues to have sufficient working capital and is not hampered in

any manner. There has been no hindrance in the functioning of the CD as a going concern

on account of the said disbursement. 'Liquidator' has recovered Rs.26 Crores from old

debtors. He has also kept the operation of the company as going concern in terms of the

directions of the 'Adjudicating Authority' vide order dated 06.08.2019 and even appointed

'Committee of Key Managerial Personnel' comprising of 8 persons. Keeping the surplus

fund idle will not serve any purpose and accordingly, he reduced its interest liability. The

'Hon'ble Calcutta High Court' in W.P No. 7962/2020 filed by ED vide order dated

28.11.2020 has stayed the order passed by the 'Adjudicating Authority' wherein the assets

of the CD were d-attached. The 'Respondent No.1 - Varrsana Employee Welfare

Association' are continuously creating unnecessary hindrance to the resolution process of

the CD without any locus standi and is not even a part of SCC. It is unfortunate to point

out that IA No.531/2020 filed by the R1 is challenged to the order of the Adjudicating

Authority dated 14.01.2020 passed by the Coordinate Bench before the same bench. It has

also been stated had they been aggrieved vide order dated 14.01.2020 of Adjudicating

Authority in CP (IB) No.1546/KB/2019 in CP(IB) no.543/KB/2017, they should have

appealed before this Appellate Tribunal. However, despite availability of statutory remedy,

the Adjudicating Authority has wrongly heard and allowed the application and passed the

impugned order. Such orders passed by the Adjudicating Authority in IA No.531/KB/2020

is a review petition and is not accordance with Section 40 (2) of the Companies Act, 2013

(for short Act) which provides for that other than rectification of error it tantamount to

appeal and accordingly, the Adjudicating Authority should have rejected the application

Company Appeal (AT) (Ins) No. 885 of 2020 Page 15 of 33 and should not have gone for modification of the order dated 14.01.2020. There are no

provisions in the Adjudicating Authority Rules to review its own order. Therefore, the

impugned order is passed without jurisdiction. Based on this impugned order of 26.06.2020

of Adjudicating Authority the IBBI has prohibited the Liquidator for acting as a Resolution

Professional (RP) for 3 months. The Liquidator has also submitted that he has not acted in

collusion with Central Bank of India rather he has filed an application bearing IA No.859

/2020 for recovery of money. Based on these submissions, he has sought the reliefs to allow

the present appeal and set aside the impugned order dated 26.06.2020 passed by the

Adjudicating Authority.

11. The Respondent No.1- Varrsana Employee Welfare Association has stated that The

Liquidator is not an aggrieved person as the impugned order directs the Respondent Banks

to refunds the money illegally distributed to them by the liquidator. The Liquidator cannot

maintain this appeal. The Liquidator has not appealed against the order dated 14.01.2020

and hence, he cannot prefer this appeal as the issued attained finality.

12. The Liquidator has illegally and unlawfully distributed Rs.21 Crore from the working

capital of the company in liquidation before sale of the assets of the CD among the

banks/financial creditors. The Liquidator admits in the 3rd SCC Meeting that he will file an

application for fresh valuation and modification of the list of the stakeholders. The

Liquidator has failed to comply with Regulation 32, 34 & 42 of the IBBI (Liquidation

Process) Regulations. The Liquidator has also not complied with Section 53 of the Code

as assets are to be sold first and then only distribution can take place. The stand of the

liquidator is that he is distributing the funds from the excess working capital to reduce the

debt burden of the CD, this is not the mandate of the Code. The Central Bank of India, a

nationalized bank has got the funds out of this distributions. They have also submitted that

Company Appeal (AT) (Ins) No. 885 of 2020 Page 16 of 33 the IBBI its order dated 29.10.2020 has expressly held that the Appellant Liquidator has

violated the provisions of Section 52 of the Code R/w Regulation 42 of IBBI (Liquidation

Process) Regulations, 2016 as well as other provisions of the Code and has held the

Liquidator to be guilty illegal and unlawful distribution. This appeal has been filed by the

Appellant only to safeguard himself from any further IBBI proceedings and not safeguard

interest to the CD. He is acting in collusions with Respondent Lenders to get higher fee by

making illegal distributions among the lenders.

13. It is submitted by the Respondent No.2 that the present appeal has been filed by the

Appellant against order dated 26.06.2020 passed by the Adjudicating Authority in IA No.

531/2020 in CP No. 543/KB/2017 wherein it was held that distribution of the funds from

the working capital and profits to the stakeholders until assets have been liquidated and till

the liquidator realises the complete liquidation value is not in conformity with the Code

and its Regulations. The loan account of the CD was taken over by Omkara Assets

Reconstruction Private Limited from Indian Overseas Bank (IOB) and Central Bank of

India (CBI) vide Assignment Agreements dated 23.11.2020 and 29.12.2020. The

Respondent No.2 had filed an IA No. 277/2021 for Substitution in place of Respondent no.

2- IOB and Respondent No. 3- CBI and the same was allowed by this Tribunal vide order

dated 17.02.2021. The Respondent No. 2 is supporting the present appeal. The impugned

order dated 26.06.2020 passed by the Adjudicating Authority is bad in law and the same is

liable to be set aside by this Tribunal. In this regard, the Respondent No. 2 subscribes to

all the grounds which have been taken by the Appellant in the Memo of the Appeal.

14. It is also stated that the percentage of Share (Voting Right) as per total debt of the

Respondent No. 2 is 49.43% (IOB = 29.4% and CBI = 20.02%). As per Section 36(3)(a),

36(3)(c), 36(3)(d) and 36(3)(i) of Code, Liquidation Estate includes all the assets over

Company Appeal (AT) (Ins) No. 885 of 2020 Page 17 of 33 which the CD has ownership rights including all rights and interests therein as evidenced

in the balance sheet of the CD, etc. as well as all tangible and intangible assets of the CD,

and all proceeds of liquidation as and when realised. As per Section 36(2), the Liquidator

holds the liquidation estate for the benefit of the Creditors. It is submitted that the

components of working capital (stock, book debts, advances, etc.) and profits/ revenue

generated from operations of the CD as a going concern shall also be a part of liquidation

estate. It is further submitted that the profits are being generated by sale of Liquidation

Assets and therefore the same will also be covered in Section 53 of the IBC, 2016 and

Regulation 42 of Liquidation Regulations 2016. Admittedly, there is no statutory bar in

making disbursement out of available surplus funds to the secured Financial Creditors,

dues of which are more that Rs. 837 crores. The Respondent No. 1 consisting of the

Employees of the CD who have moved to the Adjudicating Authority are not even the

stakeholders (refer to page 36 para ix of the Appeal). As the CD is running smoothly, all

the employees are getting their salaries on a regular basis. They have no dues whatsoever

against the CD. By distribution of the Surplus Funds to the Financial Creditors, no

prejudice will be caused to the Employees and Workmen. Even the Adjudicating Authority

in its subsequent order dated 28.05.2021 passed in IA No. 1014/2020 (which had been filed

by Respondent No. 1 herein) has held that the workers have no outstanding dues against

the CD and therefore they are not eligible to be included in the SCC. At Page 31 para (ix)

and Page 36 ground (x) of the Appeal Memo, it has been stated that the CD is being run at

its full capacity and there is no scarcity of funds for meeting working capital requirements.

At page 173, the present bank balance of the CD is Rs. 12.01 crores. As per page 57, it has

been recorded in the impugned order that there is enough working capital of Rs. 40 crores.

Company Appeal (AT) (Ins) No. 885 of 2020 Page 18 of 33

15. It is also stated that the Claims of the secured Financial Creditors have been admitted for

Rs. 837.36 crores to keep the surplus funds idle would not serve any purpose whatsoever.

On the other hand, the payment to the secured Financial Creditors out of the available funds

will reduce the interest liability of the CD. As per Regulation 42(1) of Liquidation

Regulations 2016, the Liquidator before commencement of distribution has to file the list

of stakeholders and the Asset Memorandum with the Adjudicating Authority. As per the

Memorandum of Appeal, (refer to Page 29 & 30) both the above compliances have already

been made by the Liquidator. Hence, there is no justification in restraining the Liquidator

from making the distribution to the Financial Creditors as per Section 53 of Code. As per

the prevailing practice in the Hon'ble High Courts, the Official Liquidators obtain an

undertaking from the Banks and FIs before disbursing any amounts. By these undertakings,

the Banks and FIs agree to refund the amount disbursed to them in case it is found

subsequently that any excess payment has been made to them. In the present case also as

per Page 23 para (xxix), the Liquidator has already obtained the undertaking from the

Financial Creditors. In the present case, there is an order of attachment under 'Prevention

of Money Laundering Act'. Though the Adjudicating Authority vide its order dated

22.07.2020 has allowed the Liquidator to proceed with the sale of the assets; but the

operation of the said order has been stayed by the Hon'ble Calcutta High Court vide order

dated 20.11.2020 in WP No. 7962/2020 filed by the ED. In view of the same, the sale of

the assets of the CD is not possible at this stage and due to legal intricacies, it is absolutely

uncertain as to when the Liquidator will be able to realise the assets of the CD by disposing

the same as a going concern. In these circumstances, if the impugned order passed by the

Adjudicating Authority is upheld then the realisation of the dues of Financial Creditors will

be postponed indefinitely which is contrary to the declared objects of Code. Even otherwise

Company Appeal (AT) (Ins) No. 885 of 2020 Page 19 of 33 in the case of a going concern, Even the account of the borrower is regular, the dues of the

Financial Creditors are repaid out of the profits made by the CD. As per Section 53(1)(b)

of the Code, the Workmen's dues for the period of 24 months preceding the liquidation

commencement date and the dues owed to the Secured Creditors rank pari passu. In the

present case, no workmen's dues are outstanding and therefore, there will be no need to set

apart any amount for payment towards workmen's dues.

16. The learned counsel for the Respondent No.6 - Union Bank of India has submitted that the

instant appeal has been filed by the Liquidator is very much justifiable in the eye of law

since the CD had availed the financial facilities from the financial creditors under certain

terms and conditions and they are in devoid of all such terms and conditions and after

becoming the defaulter the financial creditors has the right to recover money lent to the CD

because the money which had been lent are nothing but public money and the Financial

Creditor (FC) are in duty bound to pay the interest to the depositors. If the amounts are not

recovered, then the FC will be in difficulty to provide public assistance and the amount

paid by the Liquidator to Performa Respondent No.6 is Rs. 3.69 Crores out of total claim

Rs.114.93 Crores as on 31.10.2020 and the Performa Respondent No.6 is a renowned

institution running its Banking business for a long time with the trust and hope of people

of this country, therefore, there is no chance of running away from its liability or

responsibility and the Adjudicating Authority should take pragmatic view in deciding the

instant matter since public money is involved in the instant matter.

17. It is stated that the Adjudicating Authority has clearly permitted the Liquidator to utilise

the fund for the operation of the CD and the said fund may be equally distributed among

the stakeholders but the order dated 26.06.2020 has completely tied the hands of the

creditors to get their money back which not only affects the business of the FCs but also

Company Appeal (AT) (Ins) No. 885 of 2020 Page 20 of 33 affects the public at large. The return of money paid by the Liquidator will certainly affect

all the stakeholders and section 53 of the Code does not restrict the Liquidator from

disbursing funds in accordance with Section 53 of the Code and therefore, there is no

violation of regulations as alleged. Section 53 of the Code, as enumerated below:

"Section 53: Distribution of assets.

(1) Notwithstanding anything to the contrary contained in any law enacted by the Parliament or any State Legislature for the time being in force, the proceeds from the sale of the liquidation assets shall be distributed in the following order of priority and within such period and in such manner as may be specified, namely :--

(a) the insolvency resolution process costs and the liquidation costs paid in full;

(b) the following debts which shall rank equally between and among the following :--

(i) workmen's dues for the period of twenty-four months preceding the liquidation commencement date; and

(ii) debts owed to a secured creditor in the event such secured creditor has relinquished security in the manner set out in section 52;

(c) wages and any unpaid dues owed to employees other than workmen for the period of twelve months preceding the liquidation commencement date;

(d) financial debts owed to unsecured creditors;

(e) the following dues shall rank equally between and among the following:--

(i) any amount due to the Central Government and the State Government including the amount to be received on account of the Consolidated Fund of India and the Consolidated Fund of a State, if any, in respect of the whole or any part of the period of two years preceding the liquidation commencement date;

(ii) debts owed to a secured creditor for any amount unpaid following the enforcement of security interest;

(f) any remaining debts and dues; (g) preference shareholders, if any; and

(h) equity shareholders or partners, as the case may be.

Company Appeal (AT) (Ins) No. 885 of 2020 Page 21 of 33 (2) Any contractual arrangements between recipients under sub-section (1) with equal ranking, if disrupting the order of priority under that sub-section shall be disregarded by the liquidator.

(3) The fees payable to the liquidator shall be deducted proportionately from the proceeds payable to each class of recipients under sub-section (1), and the proceeds to the relevant recipient shall be distributed after such deduction. Explanation.--For the purpose of this section--

(i) it is hereby clarified that at each stage of the distribution of proceeds in respect of a class of recipients that rank equally, each of the debts will either be paid in full, or will be paid in equal proportion within the same class of recipients, if the proceeds are insufficient to meet the debts in full; and

(ii) the term "workmen's dues" shall have the same meaning as assigned to it in section 326 of the Companies Act, 2013.

18. It is also stated that the Liquidator herein from the date of inception of the CIRP has taken

all the measure as enumerated and permitted under the Code and also IBBI (Liquidation

Process) Rules, 2016. The Liquidator has formed a SCC to discuss and/or exonerate the

CIRP and after forming the same several meetings were held by the Liquidator with the

SCC in order to reconcile the recovery made by the banks during the period of the CIRP

and a Distribution Chart was also made dealing with the recovery made by the banks. In

all the meetings held on different times and in all the meeting discussion was held on

putting efforts to revive the CD by way of the Scheme of "Compromise or Arrangements"

as per Section 230 of the Companies Act, 2013. In the meeting held on 01.10.2020 the

liquidator apprised before the SCC as the steps taken by the Liquidator in order to obtain a

scheme of arrangement or compromise.

a. An Application filed before the Adjudicating Authority under Section 230 of the

Companies Act, 2013 (ACT).

Company Appeal (AT) (Ins) No. 885 of 2020 Page 22 of 33 b. An Application for extension of the time for 90 days beyond the liquidator

commencement date from 05.11.2019 to invite the scheme for Compromise or

arrangements under Section 230 of the Act.

c. Application filed under Section 66 for fraudulent transaction before the Adjudicating

Authority.

d. Application filed by the Liquidator under Section 35(1)(n) of the Code for extension of

the liquidation process; and discussion was also held regarding the way forward in

liquidation.

19. It is also stated that the CD is running as a going concern by the Liquidator and also earning

their profit and there is no outstanding salary and wages due of the workman under the

employee of the CD which has been paid upto date even the amount deducted buy the

Liquidator has also been payed by virtue of the order dated 26.06.2020. It is pertinent to

mention that for running of the Company/business enterprise/production activities of the

CD four factors of products are required to run the same which is land, labour capital and

Entrepreneurship which are the factor of production resources or inputs are what is used

the productions process to produce the output.

20. It is submitted that the Liquidator is justified to pay the money to the Respondent no.6 and

other lenders as such the public money id involved for the business operation of the CD.

The intention if the Legislature not go against the law of economics and never intent to

deprive the secured creditors/lending institutions who has provided debt to the business

operation of the CD. The Performa Respondent No.6 being one of the lending bank of the

CD put its prayer before this Tribunal to give direction the Liquidator to consider the

interest element to the loan amount while arriving the profit of the CD and also direction

to pay the said interest amount for such lending bank and the scenario would have been

Company Appeal (AT) (Ins) No. 885 of 2020 Page 23 of 33 different had the CD being a defunct company and the intention to the legislature is not to

deprive any further production.

21. The learned Counsel for the Respondent no.6 - SBER BANK is stated that the application

being CP(IB) No.543/KB/2017 was filed by the Respondent No.7 against the Varsana Ispat

Limited before the Adjudicating Authority. The said application was admitted by

Adjudicating Authority vide judgment and order dated 16.11.2017. Thereafter, since no

resolution of Varsana Ispat Limited could be achieved, the Adjudicating Authority vide

order dated 06.08.2019 ordered liquidation of Varsana Ispat Limited. Subsequently, the

Appellant constituted a SCC in terms of Regulation 31A of the IBBI (Liquidation Process)

Regulations, 2016. The said SCC comprises of Central Bank of India, UCO Bank, Indian

Overseas Bank and Corporation Bank as its members, and the Respondent is merely an

invitee in the said SCC.

22. It is also submitted that a meeting of the SCC was held on 03.02.2020 at the Corporate

Office Central Bank of India, N.S. Road, Kolkata wherein the distribution as per Section

53 of the Code for the Secured Creditors having first charge on the current assets of Varsana

Ispat Limited was discussed. The minutes of the meeting of the SCC dated 03.02.2020

categorically records as under:

"All the secured creditors except SBER Bank is having first

charge on the Current Assets of the CD. SBER Bank is having

second charge on the Current Assets, therefore, would not be

disbursed in this disbursement".

23. It is stated by the Respondent No.6 that in terms of the aforesaid, the Respondent did not

receive any money during the disbursement which is the subject matter of challenge in the

Company Appeal (AT) (Ins) No. 885 of 2020 Page 24 of 33 present appeal before the Appellate Tribunal. The Respondent is a Proforma Respondent

and no averment has been made against the Respondent. Further, no relief has been sought

against the Respondent in the present appeal. The Respondent has not received any funds

from Rs.21 Crore (approx.) which has been disbursed by the Appellant.

24. We have gone through the submissions made by the Ld. Counsels for the parties including

the 'written submissions' and other relevant documents available on record and have

following observations: -

a. The 'Adjudicating Authority - National Company Law Tribunal, Kolkata Bench' has

allowed on 14.01.2020 in CA(IB) No.1546/KB/2019 in CP(IB) No.543/KB/2017 for

distribution amongst Stakeholders including the claims of the employees in accordance

with Section 53 of the Code, the same is extracted below (at page 128 in clause 4 of

the Appeal Paper Book):

"Clause 4- We have heard the Appellant and Non-applicant

including Learned counsel for the Liquidator and after hearing the

parties, we are of the view that there is no justification for the

Liquidator to withhold the aforesaid amount of Rs. 18.00 crores

and odd, lying with the Liquidator and it is directed that the same

may be utilized for the operations of the Corporate Debtor to

remain Corporate Debtor as going concern for distribution

amongst stakeholders in equal manner as per provisions of Section

53 of the Code, which would include the claims of the employees,

if any.

b. The same Adjudicating Authority - National Company Law Tribunal, Kolkata Bench,

vide its order dated 26.06.2020, on a petition filed by the 'Employees Welfare

Company Appeal (AT) (Ins) No. 885 of 2020 Page 25 of 33 Associations' of the Varsana Ispat Limited - CD has virtually reversed its decision

(earlier Adjudicating Authority) by asking the Liquidator that the

Stakeholders/Financial Creditor who are in receipt of the funds shall keep the amount

in an interest bearing account of the CD and returnable if need arises for operating the

CD and also directed the Liquidator to pay the portion of salary deducted from the

salary of the employees with applicable bank interest. The order dated 26.06.2020 of

the Adjudicating Authority para 21 at page 57 of the Appeal Paper book is extracted

below:

"21. In view of the matter, we are allowing the application as

per the following orders:

a. The distribution of funds from working capital and profit to

the stakeholders until assets have been liquidated, and till the

liquidator realizes the complete liquidation value is not in

conformity with the provisions of the Code and Regulations;

b. The stakeholders/financial creditors who are in receipt of the

funds shall keep the amount received by them in an interest

bearing account of the CD, and returnable as per Regulation 43,

if need arises for operating the CD;

c. The liquidator is directed to pay the portion of salary deducted

from the salary of the employees with applicable bank interest

till the date of payment.

IA (IB) No. /KB/2020 is disposed of accordingly.

The Registry is directed to send e-mail copies of the order

forthwith to all the parties."

Company Appeal (AT) (Ins) No. 885 of 2020 Page 26 of 33 It is also being observed that there is no subsisting claims of the employees and all

the employees are getting their salary on a regular basis.

c. All CIRP costs and liquidation costs have been recouped. It is also revealed from the

written submission of the Liquidator wherein at page no.14, he has enclosed order dated

28.05.2021 of the Adjudicating Authority in IA No.1014/KB/2020 in CP(IB)

No.543/KB/2017 that the gratuity claim of the employee is also not existing and

accordingly, the Adjudicating Authority has held vide para 10.1 of the order dated

28.05.2021 that the prayer of inclusion of the representative of the workmen of the

employees on the SCC is not acceded to since the workers at this point of time do not

have a subsisting claim. It is also observed from the same clause 10.1 of the said order

the Liquidator has refunded the fee of Rs.1.5 Crore. It is also mentioned in that order

vide clause 10.1.I that for proper constitution of SCC ,Liquidator is to take appropriate

steps. It is also pointed out in the order dated 28.05.2019 that Varsana Employee

Welfare Association has filed this fourth Petition.

d. The present appeal is not time barred, in terms of Hon'ble Supreme Court Order in

M.A No.665/2021 in SMW (C) No.3/2020 regarding cognizance of extension of

limitation has already extended, the limitation for institution of proceedings etc., and

hence this appeal is well within limitation (26.06.2020 impugned order , 28.09.2020

appeal filed )in terms of the direction of the Hon'ble Supreme Court.

e. It is also revealed that IBBI in its interim order dated 29.10.2020 has found that the

Liquidator has made distribution without complying with the provisions of the Code

and related Regulations and has debarred him from undertaking any new assignments

for a period of 90 days from the date of said order. It is also revealed that he has

Company Appeal (AT) (Ins) No. 885 of 2020 Page 27 of 33 distributed so called surplus fund generated out of collection of old dues from Debtors

to the following banks: -

i. Central Bank of India

ii. Corporation Bank of India

iii. UCO Bank

iv. United Bank of India

v. Indian Overseas Bank

All these banks are 'Nationalized Public Sector Banks' and distribution has

been done by the Liquidator after taking undertaking that they will return the

money, if they are not entitled in accordance with Regulation 43 of the IBBI

(Liquidation Process) Regulations, 2016

f. The Respondent no.5 - Union Bank of India has justified the appeal filed by the

Liquidator and has stated that the CD availed Financial facility from the Financial

Creditors and are entitled to recover the money as these are public money and the

financial creditors are duty bound to collect interest thereon.

g. For brevity and clarity the various related provisions in regard to the realization during

the liquidation process and its distribution are given hereunder: section 35, 36 53 of

the Code as stated (supra).

h. Regulation 4, 32A, 39 & 42 IBBI (Liquidation Process) Regulations 2016:-

"4- Liquidator's fee.

(1) The fee payable to the liquidator shall be in accordance with the decision taken by

the committee of creditors under regulation 39D of the Insolvency and Bankruptcy

Board of India (Insolvency Resolution Process for Corporate Persons) Regulations,

2016.

Company Appeal (AT) (Ins) No. 885 of 2020 Page 28 of 33 (2) In cases other than those covered under sub-regulation (1), the liquidator shall be

entitled to a fee (a) at the same rate as the resolution professional was entitled to during

the corporate insolvency resolution process, for the period of compromise or

arrangement under section 230 of the Companies Act, 2013 (18 of 2013); and

(b) as a percentage of the amount realised net of other liquidation costs, and of the

amount distributed, for the balance period of liquidation, as under:

Amount of Percentage of fee on the amount realised / distributed Realisation / Distribution (In rupees in the first six in the next six thereafter months months

Amount of Realisation (exclusive of liquidation costs) On the first 1 crore 5.00 3.75 1.88 On the next 9 crore 3.75 2.80 1.41 On the next 40 2.50 1.88 0.94 crore On the next 50 1.25 0.94 0.51 crore On further sums 0.25 0.19 0.10 realized Amount Distributed to Stakeholders On the first 1 crore 2.50 1.88 0.94 On the next 9 crore 1.88 1.40 0.71 On the next 40 1.25 0.94 0.47 crore On the next 50 0.63 0.48 0.25 crore On further sums 0.13 0.10 0.05 distributed

(3) Where the fee is payable under clause (b) of sub-regulation (2), the liquidator shall

be entitled to receive half of the fee payable on realisation only after such realised

amount is distributed.

Clarification: Regulation 4 of these regulations, as it stood before the commencement

of the Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment)

Company Appeal (AT) (Ins) No. 885 of 2020 Page 29 of 33 Regulations, 2019 shall continue to be applicable in relation to the liquidation

processes already commenced before the coming into force of the said amendment

Regulations."

32A. Sale as a going concern.

(1) Where the committee of creditors has recommended sale under clause (e) or (f) of

regulation 32 or where the liquidator is of the opinion that sale under clause (e) or (f)

of regulation 32 shall maximise the value of the corporate debtor, he shall endeavour

to first sell under the said clauses.

(2) For the purpose of sale under sub-regulation (1), the group of assets and liabilities

of the corporate debtor, as identified by the committee of creditors under sub-

regulation (2) of regulation 39C of the Insolvency and Bankruptcy Board of India

(Insolvency Resolution Process for Corporate Persons) Regulations, 2016 shall be sold

as a going concern.

(3) Where the committee of creditors has not identified the assets and liabilities under

subregulation (2) of regulation 39C of the Insolvency and Bankruptcy Board of India

(Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the

liquidator shall identify and group the assets and liabilities to be sold as a going

concern, in consultation with the consultation committee.

(4) If the liquidator is unable to sell the corporate debtor or its business under clause

(e) or (f) of regulation 32 within ninety days from the liquidation commencement date,

he shall proceed to sell the assets of the corporate debtor under clauses (a) to (d) of

regulation 32.]

Company Appeal (AT) (Ins) No. 885 of 2020 Page 30 of 33

39. Recovery of monies due. The liquidator shall endeavor to recover and realize all

assets of and dues to the corporate debtor in a time-bound manner for maximization of

value for the stakeholders.

42. Distribution.

(1) Subject to the provisions of section 53, the liquidator shall not commence

distribution before the list of stakeholders and the asset memorandum has been filed

with the Adjudicating Authority.

(2) The liquidator shall distribute the proceeds from realization within 22[ninety days]

from the receipt of the amount to the stakeholders.

(3) The insolvency resolution process costs, if any, and the liquidation costs shall be

deducted before such distribution is made."

As it looks the recovery from the Debtors are also forming part of liquidation estate

and it is also revealed that he has complied with Regulation 43 of the IBBI Regulations by

taking appropriate undertaking from the concerned bankers.

25. Conclusion:-

What we observe that the Adjudicating Authority in its impugned order dated

26.06.2020 has reviewed its own order dated 14.01.2020 in C.A(IB) No.1546/KB/2019

in CP (IB) No.543/KB/2017. The Adjudicating Authority (NCLT) has only power to

rectify any mistake apparent from the record in accordance with Section 420 of the

Companies Act, 2013 R/w Rule 154 of NCLT Rules, 2016. The Code also provides for

appeals and Appellate Authority vide section 61 of the Code. For brevity and clarity,

the same is extracted below:

Section 61 - Appeals and Appellate Authority.

Company Appeal (AT) (Ins) No. 885 of 2020 Page 31 of 33 (1) Notwithstanding anything to the contrary contained under the

Companies Act 2013, any person aggrieved by the order of the

Adjudicating Authority under this part may prefer an appeal to the

National Company Law Appellate Tribunal.

(2) Every appeal under sub-section (1) shall be filed within thirty days

before the National Company Law Appellate Tribunal: Provided that the

National Company Law Appellate Tribunal may allow an appeal to be

filed after the expiry of the said period of thirty days if it is satisfied that

there was sufficient cause for not filing the appeal but such period shall

not exceed fifteen days.

(3) An appeal against an order approving a resolution plan under section

31 may be filed on the following grounds, namely:--

(i) the approved resolution plan is in contravention of the provisions of

any law for the time being in force;

(ii) there has been material irregularity in exercise of the powers by the

resolution professional during the corporate insolvency resolution

period;

(iii) the debts owed to operational creditors of the corporate debtor have

not been provided for in the resolution plan in the manner specified by

the Board;

(iv) the insolvency resolution process costs have not been provided for

repayment in priority to all other debts; or

(v) the resolution plan does not comply with any other criteria specified

by the Board.

Company Appeal (AT) (Ins) No. 885 of 2020 Page 32 of 33 [(4) An appeal against a liquidation order passed under section 33, or

sub-section (4) of section 54L, or sub-section (4) of section 54N, may be

filed on grounds of material irregularity or fraud committed in relation

to such a liquidation order.

(5) An appeal against an order for initiation of corporate insolvency

resolution process passed under sub-section (2) of section 54- O may be

filed on grounds of material irregularity or fraud committed in relation

to such an order.]"

In view of aforesaid provisions of law and facts on record, the appeal is partially

allowed by setting aside the impugned order of Adjudicating Authority dated

26.06.2020 as stated at clause 'a' of the relief sought.

Pending application, if any, stands disposed off.

No order as to costs.

[Justice Jarat Kumar Jain] Member (Judicial)

(Dr. Ashok Kumar Mishra) Member(Technical)

19th January, 2022

New Delhi

Raushan.K

Company Appeal (AT) (Ins) No. 885 of 2020 Page 33 of 33