In this case, CoC without following any process under CIRP, took the decision for liquidation of the Corporate Debtor by 88.48% voting share. NCLT New Delhi Bench rejects the IA for liquidation and order for notice u/s 65.
On appeal, Hon’ble NCLAT referring decision in Sunil S. Kakkad Vs. Atrium Infocom Pvt. Ltd. [2020] ibclaw.in 42 NCLAT, holds that there is an error in the approach of the Adjudicating Authority that for the purpose of taking a decision regarding the liquidation of the CD, the CoC has to complete all the steps regarding resolution of the CD because it would be against the spirit of Sec. 33(2) and explanation appended to it wherein the legislature has used the word any time twice i.e., firstly, in Sec. 33(2) and secondly, in the explanation of Sec. 33(2) of the Code that the CoC has the jurisdiction to pass the order of liquidation of the CD, approving it by not less than 66% of the voting share, but it should be before the confirmation of the resolution plan.