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2023 Supreme(Online)(NCLT) 2450
IN THE NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD SPECIAL BENCH COURT - 2 Item No 208- IA 625 of 2021 Item No 209- IA 746 of 2023 In CP(IB) 310 of 2020 Proceedings under Section 9 IBC IN THE MATTER OF:
Nice Ceramic Pvt Ltd ........Applicant V/s K-Mark Bizsol Pvt Ltd ........Respondent Order delivered on 28/08/2023 Coram:
Mr. Shammi Khan, Hon’ble Member(J)
Dr. Velamur G Venkata Chalapathy, Hon’ble Member(T)
PRESENT:
For the Applicant : Mr. Yuvraj Thakore, Adv.
For the Respondent :
ORDER
IA 746 of 2023 & IA 625 of 2021 In IA 746 of 2023, learned counsel Mr. Yuvraj Thakore appeared for the RP. None appeared for the respondent. In pursuance of the order dated 20.07.2023, the counsel for the applicant/RP has filed the service report by way of an affidavit which is taken on record.
This is an application filed by the RP under Section 12A of the IBC, 2016 read with Regulation 30A of the IBBI Regulations, 2016 seeking termination/withdrawal of the ongoing CIRP of the corporate debtor on the ground that the counsel for the applicant/RP has apprised that the resolution to this effect has been filed by the CoC on 21.04.2023 with 100% voting in favor of the withdrawal/termination of the ongoing CIRP. We have heard the counsel for the applicant and perused the record.
“5. That the said IA 625 of 2021 was heard from time to time by this Hon’ble Tribunal and during the hearing dated 21/06/2022, this Hon’ble Tribunal observed that despite notices being issued to the CoC members and suspended management, they are choosing to not appear before this Hon’ble Tribunal. Furthermore, during the CIRP of the Corporate Debtor, the CoC members and suspended management did not cooperate with the Applicant/Resolution Professional. In view of the same, it was instructed to apply for termination of CIRP.”
In view of the reasons assigned as well as in the resolution, we allow the present application and IA 625 of 2021 being rendered infructuous accordingly. Detailed order will be issued. Accordingly, the main petition CP (IB) 310 of
2020 is disposed off.
-Sd -Sd DR. V. G. VENKATA CHALAPATHY SHAMMI KHAN MEMBER (TECHNICAL) MEMBER (JUDICIAL)
IN THE NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD (COURT NO.II)
IA No. 625 / NCLT / AHM / 2021, IA No.746 of 2023 In CP(IB) No. 310 / NCLT / AHM / 2020 MEMO OF PARTIES IA 625 of 2021 (Application Under Section 33 r.w Section 34 of the IB Code, 2016)
IN THE MATTER BETWEEN Mr. Ashish Shah, RP of M/s. K-Mark Bizsol Private Limited Having office at: 402 "Shaival Plaza" 4th Floor, Gujarat College Road, Beside Hope Hospital, Ellisbridge, Ahmedabad - 380006 … Applicant Versus
1. Mr. Bhagvanjibhai Devjibhai Kasundra, Suspended Board of Directors of M/s. K-Mark BizsolPrivate Limited Having office at: Office No. 3, First Floor, Ceramic Plaza 1, Morbi - 363642
2. Mr. Upendrabhai Bhagvanjibhai Kasundra Suspended Board of Directors of M/s. K-Mark Bizsol Private Limited, Having office at: Office No. 3, First Floor, Ceramic Plaza 1, Morbi – 363642
3. M/s. Nice Ceramics Private Limited Member of Committee of Creditor of M/s. K-Mark Bizsol Private Limited Having office at: S. NO. 13p, Off National Highway, Vill. Lalpar, Morbi, Rajkot- 363 642
4. M/s. Symbosa Granito Private Limited Member of Committee of Creditor of M/s. K-Mark Bizsol Private Limited Having office at: Survey No. 125p1, 125p2, 126, 1
31p1, 131p2 & 131p3 Village: Matel, Taluka:
Wankaner, Rajkot - 363 621
5. M/s. Laffans Granito Private Limited Member of Committee of Creditor of M/s. K-Mark Bizsol Private Limited Having office at: Survey No. 279/P, Nr. Rangpar, Jetpar Road, At. Jivapar-Chakampar, Jivapar, Rajkot -363630
6. M/s. Jai Ganesh Vitrified Private Limited Member of Committee of Creditor of M/s. K-Mark Bizsol Private Limited Having office at: Survey No. 837, 875 and 876 AT:
GHUNTU, TAL. MORBI - 363 642 … Respondent IA 746 of 2023 (Application Under Section 12A of IBC, 2016 r.w 30A of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016)
IN THE MATTER BETWEEN Mr. Ashish Shah, RP of M/s. K-Mark Bizsol Private Limited Having office at: 402 "Shaival Plaza" 4th Floor, Gujarat College Road, Beside Hope Hospital, Ellisbridge, Ahmedabad - 380006 … Applicant Versus Mr. Bhagvanjibhai Devjibhai Kasundra, Suspended Board of Directors of M/s. K-Mark BizsolPrivate Limited Having office at: Office No. 3, First Floor, Ceramic Plaza 1, Morbi – 363642 …. Respondent Appearance:
For Applicant : Mr. Yuvraj Thakore, Adv.
For the Respondent :
Order delivered on : 29/08/2023 Coram:
SH. SHAMMI KHAN, HON’BLE MEMBER (JUDICIAL)
DR. VELAMUR G VENKATA CHALAPATHY HON’BLE MEMBER (TECHNICAL)
For the Petitioner:Yuvraj Thakore
ORDER
01. M/s. Nice Ceramic Private Ltd. (for brevity ‘Operational Creditor’) had filed application under Section 9 of the Insolvency and Bankruptcy Code, 2016 for initiating insolvency proceedings against the Corporate Debtor and the Hon’ble Adjudicating Authority vide order dated 15.02.2021 admitted the Corporate Debtor into CIRP.
02. The operational creditor had not proposed the name of the Interim Resolution Professional. The applicant (Mr. Ashish Shah) was appointed as the Insolvency Resolution Professional (IRP) order dated 15.02.2021 under Section 13(1)(c) of the Insolvency and Bankruptcy Code, 2016 by the Hon’ble Tribunal.
03. The applicant had received the certified copy of the CIRP admission order on 20.02.2021. Thereafter, pursuant to the provisions of Section 13 of the Code and Regulation 6 of the IBBI (IRPCP Regulations 2016) the applicant made a public announcement on 20.02.2021 in Times of India, Rajkot (English Edition), Sandesh Saurashtra Split Gujarati Newspaper as contemplated under the provisions of the Insolvency and Bankruptcy Code, 2016 and called for claims from all the creditors of the Corporate Debtor. A copy of public announcement dated 20.02.2021 made by the IRP is annexed with the application.
04. After public announcement, the applicant received no claims from financial creditor (Secured and Unsecured) of the Corporate Debtor. Therefore, as per Regulation 16 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations 2016 the Committee of Creditors was formed of the Operational Creditors. A summary of the final claims received from the Operational Creditors is as under :
| Name of Operational Creditor | Amount Claimed by the Creditors (Amount in Rs.) | Amount Admitted (Amount in Rs.) | % of Claim |
| Jai Ganesh Vitrified Private Limited | 10,25,164 | 10,25,164 | 2.82 |
| Nice Ceramic Private Limited | 3,16,91,340 | 2,18,58,940* | 60.19 |
| Laffans Granito Private Limited | 43,69,285 | 43,69,285* | 12.03 |
| Symbosa Granoti Private Limited | 90,62,270 | 90,62,270* | 24.95 |
| Total | 4,61,48,059 | 3,63,15,659 | 100 |
05. The applicant then conveyed the first CoC meeting on 22.03.2021 where CoC members CoC meeting unanimously resolved to continue the IRP as Resolution Professional (RP'). Subsequent to that Second, Third and Fourth meeting of CoC was convened and held on 20/07/2021, 02/08/2021 and 11/08/2021 respectively. However, except the meeting dated 20/07 / 2021, CoC members were absent in other meetings convened by the Applicant.
06. Pursuant to the provisions of Regulation 27 of the IBBI (CIRP) Regulations, 2016, after following due procedure, Resolution Professional has appointed valuers within time prescribed under Regulation 40A of the IBBI (CIRP) Regulations, 2016. It is submitted that in the 1st CoC meeting, the applicant RP had issued letters for appointment of the valuers for conducting the Valuation of the Corporate Debtor as per the Regulations of the Insolvency and Bankruptcy Code, 2016. However, the said valuer has resigned and no valuation report has been provided by the Valuer to the applicant.
07. It is submitted that the Applicant conducted the 2nd CoC Meeting on 20.07.2021, wherein amongst other the steps to publish Expression of Interest as per Regulation 36A of the CIRP Regulation and conducting of Transactional as well as Forensic Audit was brought to the notice of the members of the CoC. However, all the members stated that the Corporate Debtor being a trading Company and does not have any assets, the decision to publish EOI be deferred for some time. It is further submitted that the applicant also informed during the said 2nd Co Meeting that the statutory DRAFT auditor of the company has resigned and finalisation of accounts for the FY 2019-20 and till the insolvency commencement date is pending and hence needs to appoint another auditor which require approval of CoC.
However, members deferred the said agenda item to the next meeting.
08. The Applicant RP also informed member of the CoC to apply for extension
