No specific provision has been made to obtain ‘affirmative vote’ in the AGM of the shareholders under the Article(164) of Ricoh India Ltd. (Corporate Debtor). Therefore, the said Article 164 is not applicable and cannot be relied upon to hold that the decision of the shareholders in the AGM is maintainable for moving the application u/s 10 of the I&B Code. The prior approval of the shareholders in the AGM has been substituted by the amendment made on 6th June, 2018, which is not applicable in the present case as it was admitted earlier in May, 2018. This apart, subsequently the matter was placed before the AGM in August, 2018 which also approved the decision for filing the application under Section 10 of the I&B Code.
During proceeding under Section 230, if any, objection is raised, it is open to the Adjudicating Authority (National Company Law Tribunal) which has power to pass order under Section 230 to overrule the objections, if the arrangement and scheme is beneficial for revival of the ‘Corporate Debtor’ (Company). While passing such order, the Adjudicating Authority is to play dual role, one as the Adjudicating Authority in the matter of liquidation and other as a Tribunal for passing order under Section 230 of the Companies Act, 2013. As the liquidation so taken up under the ‘I&B Code’, the arrangement of scheme should be in consonance with the statement and object of the ‘I&B Code’.
Section 18 of the ‘I&B Code’ deals with ‘Duties of Interim Resolution Professional’. As per which, it is the duty of the ‘Interim Resolution Professional’ to take over the control and custody of any assets over which the ‘Corporate Debtor’ has ‘ownership rights’ as recorded in the balance sheet of the ‘Corporate Debtor’ which includes the assets that may or may not be in possession of the ‘Corporate Debtor. The term “assets” do not include the assets owned by a third party in possession of the ‘Corporate Debtor’It is the duty of the ‘Interim Resolution Professional’ to take control and custody of any asset over which the ‘Corporate Debtor’ has “ownership rights” as recorded in the balance sheet of the ‘Corporate Debtor’. Even if it is not in possession of the ‘Corporate Debtor’, a person who is in possession of the same is bound to hand over the same to the ‘Resolution Professional’, when title still vests with ‘Corporate Debtor’.
Case Reference Case Name : Canbank Factors Ltd. Vs. Dharmendra Kumar Company Appeal : Company Appeal (AT) (Insolvency) No. 789 of 2018 Company Appeal Ref. : Arising out of Order dated 27th November, 2018 passed by the Adjudicating Authority (National…
Case Reference Case Name : Capri Global Capital Limited Vs. Value Infracon India Pvt. Ltd.(Through its Resolution ProfessionalMr. Sanjay Kumar Singh) & Anr. Company Appeal : Company Appeal (AT) (Insolvency) No. 29 of 2019 Company Appeal Ref. : Arising out…
If Resolution Plan is against the object of the Code and the application under Section 10 was filed with intent of closure of the Corporate Debtor for a purpose other than for the resolution of insolvency, or liquidation, the part of the Resolution Plan which relates to closure of the Corporate Debtor/Corporate Applicant being against the scope and intent of the‘I&B Code is in violation of Section 30(2)(e) of the I&B Code.
NCLAT that the till the period of ‘Moratorium’ continues, the ‘Securities and Exchange Board of India’ cannot recover any amount nor can sell the assets of the ‘Corporate Debtor’ during the ‘Moratorium’ period.Though NCLAT have held that the application under Section 7 is maintainable while step has been taken by the ‘Securities and Exchange Board of India’ the ‘Resolution Professional’ is required to act in terms of Section 17(2) (e) of the ‘I&B Code’ for complying with the requirements under the ‘Securities and Exchange Board of India Act’ and Regulations framed thereunder as well as the guidelines issued by the Regulatory Authority. It is also made clear that the ‘Securities and Exchange Board of India’ is however entitled to take action against individual including the former Directors and Shareholders of the ‘Corporate Debtor’.