NATIONAL COMPANY LAW APPELLATE TRIBUNAL

NEW DELHI

Company Appeal (AT) (Insolvency) No. 495 & 496 of 2018

IN THE MATTER OF:

S.C. Sekaran

…Appellant

Versus

Amit Gupta & Ors.

…Respondents

Present:

For Appellant :

Mr. Sumant Batra and Ms. Priyanka Anand,

Advocates

For Respondents:

Mr. Mehul Parti and Ms. Swati Seth, Advocates for

R.P.

Mr. V. Seshagiri and Mr. Adhish Rajvanshi,

Advocates for Respondent Nos. 2 and 3

O R D E R

29.01.2019

These appeals have been preferred by the management of

‘Hindustan Dorr-Oliver Limited’ (Corporate Debtor) and ‘HDO Technologies

Limited’ (the other Corporate Debtor) against orders both dated 25^th June, 2018

whereby and whereunder the Adjudicating Authority (National Company Law

Tribunal) Mumbai Bench passed order(s) of liquidation under Section 33(1) of

the Insolvency and Bankruptcy Code, 2016 (for short, ‘the I&B Code’) of both

the companies with certain directions to the liquidator.

2.

Earlier two separate appeals were preferred by ‘resolution applicant(s)

namely ‘Eight Finance Pvt. Ltd.’ and ‘Pennar Industries Ltd.’ in respect of the

‘corporate insolvency resolution process’ initiated against ‘Hindustan Dorr-

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Company Appeal (AT) (Insolvency) No. 495 & 496 of 2018

Oliver Limited’ (Corporate Debtor) and ‘HDO Technologies Limited’ (other

Corporate Debtor) wherein opportunity was given to them to submit better

revised resolution plan(s) and the ‘Committee of Creditor(s)’ were directed to

consider them. Subsequently, the ‘resolution applicant(s)’ namely ‘Eight

Finance Pvt. Ltd.’ and ‘Pennar Industries Ltd.’ withdrawn their appeals. In the

aforesaid background and there being no ‘resolution plan’, we are not inclined

to interfere with the impugned order(s) both dated 25^th June, 2018 whereby

order(s) of liquidation has been passed against ‘Hindustan Dorr-Oliver Limited’

(Corporate Debtor) and ‘HDO Technologies Limited’ (other Corporate Debtor).

3.

Learned counsel appearing on behalf of the Management (Appellant)

submitted that the ‘Liquidator’ is supposed to keep the companies as ‘going

concern’ even during the period of liquidation. If so necessary, the ‘Liquidator’

can take steps under Section 230 of the Companies Act, 2013 after consultation

with the ‘members’ or ‘the creditors’ of the Companies for making arrangement

with the third party and thereafter take approval of the ‘National Company Law

Tribunal, Mumbai Bench’. It is further submitted that it is also open to the

‘Liquidator’ to sell the companies to third parties before selling the moveable or

immovable assets of the company separately.

4.

Learned counsel appearing on behalf of the ‘Liquidator’, on instructions

from the ‘Liquidator’, who is present, submits that the ‘Liquidator’ will ensure

that both the companies remain going concern and if so necessary, he will take

appropriate orders from the Adjudicating Authority. He may also take other

steps in accordance with law as suggested by the learned counsel for the

appellant subject to the approval of the Adjudicating Authority.

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Company Appeal (AT) (Insolvency) No. 495 & 496 of 2018

5.

We have heard the learned counsel for the parties and perused the record.

The Hon’ble Supreme Court in ‘Swiss Ribbons Pvt. Ltd. & Anr. vs. Union

of India & Ors. – Writ Petition (Civil) No. 99 of 2018’ by its judgment

dated 25^th January, 2019, observed as follows:

“11. ………What is interesting to note is that the

Preamble does not, in any manner, refer to

liquidation, which is only availed of as a last

resort if there is either no resolution plan or the

resolution plans submitted are not up to the mark.

Even in liquidation, the liquidator can sell

the business of the corporate debtor as a

going concern. [See ArcelorMittal (supra) at

paragraph 83, footnote 3].

(Emphasis added)

12.

It can thus be seen that the primary focus