In the matter of Punjab Basmati Rice Limited [IA No.960-2023 in CP (IB) No.340-Chd-PB-2018]
Facts:
1.Application has been filed by Kulwinder Singh Makhni (Ex-Director of the corporate debtor) against the Liquidator seeking direction for the removal of the respondent/Liquidator and for appointment of a new Liquidator of the corporate debtor prior to the date of sale of assets of the corporate debtor, fixed for 29.03.2023.
Issue: Whether the liquidator can be removed on an application by Suspended Director of Corporate Debtor ?
Arguments:
Applicant:
1.It is submitted that respondent has concealed material information from the IBBI as well as this Tribunal regarding the registration of FIR No. RCBD-1/2020/E/0004 dated 10.09.2020 involving criminal conspiracy, cheating, forgery, using forged documents, etc., causing wrongful loss to the tune of Rs. 26.16 Crore to complainant Union Bank of India, GTBH Branch, Ludhiana
2.It is submitted that as per FIR, the respondent-liquidator has been named accused/suspect by CBI. A copy of the FIR has been attached as Annexure A-4 of the application. It is stated that the above-said FIR was registered against the directors and guarantors of the company, i.e., M/s. Supreme Tex Mart Limited, including the respondent on the basis of the Special Investigation Audit Report conducted by M/s. KPMG India.
3.The applicant has also filed a complaint against the liquidator before the IBBI, and the same is also sent to the SCC members of the corporate debtor. The same comes under the definition of misconduct. Moreover, the respondent liquidator has not disclosed the above information in FORM A, 2nd Schedule, as per IBBI (Insolvency Professionals) Regulations.
Respondent:
1.It was submitted that contents of the instant application filed by the applicant-ex-director are false and misleading. The respondent-liquidator has completed the sale of assets/properties of the corporate debtor by way of composite sale in an e-auction conducted electronically on 01.04.2023 in terms of the direction of this Hon’ble Adjudicating Authority dated 01.03.2023 and the entire realisation proceeds as realised has been distributed as per waterfall mechanism.
2.Liquidator has duly filed a reply to the complaint moved by the applicant against the liquidator before IBBI. In this regard, till date, neither any adverse action has been advised/authorised/initiated against the respondent by IBBI/IPA, nor any such fact has been communicated by the IBBI/IPA to the respondent.
3.It is submitted that the applicant/ex-director is trying to delay the proceedings of the corporate debtor by referring to one FIR registered at PS SBI, BSFB, New Delhi, and the respondent has not been informed by CBI about the registration of the aforementioned FIR. Moreover, in the said FIR, the name of the accused, i.e., Sanjay Kumar Aggarwal is the same as that of the respondent; however, no other details of the said accused match with the identity of the respondent/Liquidator.
Decision: Hon’ble NCLT dismissed the application noting that liquidator cannot be removed on an application by suspended director.
Rationale:
1.NCLT observed that the Suspended Director has no vested right to recommend the removal of the liquidator. We have also gone through the IA No. 1245/2023 filed by SCC, it nowhere recommends the removal of the liquidator and has only prayed for directions to the liquidator to immediately distribute the amount recovered by him from the sale of liquidation of assets of the corporate debtor after retaining the disputed amount with respect to his alleged liquidator fee plus liquidation expenses.
Order Copy:
