CA-276

R.Prabhu and Anr. Vs. CA.V.Venkata Sivakumar – Madras High Court

The allegations that were made against the respondent in the application filed by the petitioners became necessary in order to project the conduct/character of the respondent. If those allegations were not made in the application filed by the petitioners, there was no ground for the petitioners to seek the removal of the respondent from acting as the Liquidator. The findings rendered by the NCLT and the NCLAT would show that the respondent was, in fact, involved in certain acts, which fell within the scope of Section 276 of the Companies Act, 2013.

R.Prabhu and Anr. Vs. CA.V.Venkata Sivakumar – Madras High Court Read Post »

Liquidator can be removed under IBC, 2016 on any of the grounds provided under Sec. 276 of the Companies Act, 2013 – State Bank of India Vs. Mr. Kari Venkateswarlu – NCLT Hyderabad Bench

NCLT Hyderabad held that:
(i) The liquidator is the appointee of this Authority. He is supposed to act as a neutral umpire vis-a-vis various stakeholders in the game.
(ii) It is for the CoC etc. but not the Resolution Professional, to take appropriate proceedings or file an appeal and the Resolution Professional should have maintained a neutral stand.
(iii) The relationship between the liquidator and the Adjudicating Authority is sort of fiduciary. Similarly, the liquidator has also to maintain highest regard to the principles of integrity and honesty in dealing with all the stakeholders.
(iv) The grounds under Sec. 276 of Companies Act, 2013 have direct link with the functioning of the liquidator and if he treads the path which clash with the interest of the stakeholders or shock the conscience of the common man, he can be removed. On the same analogy, the liquidator can also be removed under the IBC on any of the above grounds.

Liquidator can be removed under IBC, 2016 on any of the grounds provided under Sec. 276 of the Companies Act, 2013 – State Bank of India Vs. Mr. Kari Venkateswarlu – NCLT Hyderabad Bench Read Post »

Whether Adjudicating Authority(NCLT) can remove a Liquidator? – CA V. Venkata Sivakumar Vs. IDBI Bank Ltd. – NCLAT Chennai

NCLAT held that the Code, 2016 does not explicitly state the grounds for removing the liquidator. In the absence of specific provisions, we may resort to Section 33 & 34 of the Code, 2016 and Section 276 of the Companies Act, 2013, which provides for the removal and replacement of liquidators on various grounds. No Liquidator, has any personal rights, to continue in Liquidation and the Adjudicating Authority, can order for replacement of the Liquidator, recording sufficient reasons, as per law. Combined reading of above Case Laws and provisions along with Section 33 and Section 34 of the Code, 2016, would make it clear that the Adjudicating Authority, which had the powers, to appoint the Liquidator, will also have the powers, to remove the Liquidator for reasons, the Adjudicating Authority, may find fit, just, valid and proper.

Whether Adjudicating Authority(NCLT) can remove a Liquidator? – CA V. Venkata Sivakumar Vs. IDBI Bank Ltd. – NCLAT Chennai Read Post »

Adjudicating Authority has the power to dismiss the Liquidator since it is vested with the powers under Section 33 and 34 of IBC, 2016 to appoint a Liquidator, read with Section 16 of the General Clauses Act, 1897 read with Section 276 of the Companies Act, 2013 – IDBI Bank Ltd. Vs. Shri. V.Venkata Sivakumar Liquidator of M/s. The Jeypore Sugar Company Ltd. – NCLT Chennai Bench

In this case, the applicant contends that the Liquidator(respondent) did not possess a valid Authorisation for Assignment as required by the IBBI Regulation as on the date of appointment as the Liquidator, and therefore seeks the removal of the respondent as the Liquidator and to declare all the duties and functions performed as the Liquidator as null and void.
The Adjudicating Authority held that a conjoint reading of Section 33 of IBC, 2016 with Section 16 of the General Clauses Act, 1897 would show that the Authority which has the power to appoint a person, equally has the power to suspend or dismiss that person, in the absence of any specific powers conferred thereto. Thus, by virtue of Section 16 of the General Clauses Act, 1897 it clear that this Adjudicating Authority has the power to dismiss the Liquidator since this Authority is vested with the powers under Section 33 and 34 of IBC, 2016 to appoint a Liquidator. In the absence of the specific provisions under the IBC, 2016 we may resort to Section 276 of the Companies Act, 2013. The Section 276 of the Companies Act, 2013 would manifest the fact that the Liquidator can be removed under some circumstances.

Adjudicating Authority has the power to dismiss the Liquidator since it is vested with the powers under Section 33 and 34 of IBC, 2016 to appoint a Liquidator, read with Section 16 of the General Clauses Act, 1897 read with Section 276 of the Companies Act, 2013 – IDBI Bank Ltd. Vs. Shri. V.Venkata Sivakumar Liquidator of M/s. The Jeypore Sugar Company Ltd. – NCLT Chennai Bench Read Post »

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