NCLT Chandigarh (01.11.2019) in Allahabad Bank Vs. M/s Supreme Tex Mart Limited. [CA No.941/ 2019 in CP (IB) No. 67/Chd/Pb/2017] held that;.
I do not find any valid reason for not considering the instant application, as the applicant is seeking to relieve him as Liquidator of the corporate debtor, on the sole ground of his ill health by duly filing the medical reports. As rightly submitted by the learned counsel for the applicant, this authority can invoke its inherent power in the interest of justice and in the circumstances of the application.
Excerpts of the Order;
CA No. 941/2017, This application has been filed by the Liquidator of M/s Supreme Tex Mart Limited, under Section 60(5)(c) of the Code read with Rule 11 of the NCLT Rules, 2016 praying for relieving him as Liquidator, on medical grounds.
# 2. In pursuance of filing of CP (IB) No. 67/Chd/Pb/2017 by one of the financial creditors of M/s Supreme Tex Mart Limited, this Tribunal initiated the CIRP against the said company by admitting the CP vide order dated 29.09.2017 and an Interim Resolution Professional (IRP) was appointed on 11.10.2017. Since no resolution could be achieved, even after expiry of the period of 270 days, this Tribunal passed orders for Liquidation of M/s Supreme Tex Mart Limited vide its order dated 08.08.2018 in CA No. 266 and 265 of 2018 and the applicant-Resolution Professional (RP) was appointed as Liquidator under the said order of Liquidation.
# 3. It is stated that while the applicant discharging his duties as Liquidator, for the last few months, the applicant has been feeling breathlessness and on examination, he has been detected with various Cardiology ailments and was advised to take rest and to avoid any activity for 3 to 6 months and the relevant medical reports have been filed as Annexure A-2 (Colly). Hence, this application.
# 4. Mr. Atul V. Sood, Advocate with Mr. Nahush Jain, Advocate, learned counsels appearing for the applicant submits that the Code only provided for replacement of IRP/RP but no specific provision is made for replacement of Liquidator. He further submits that since in identical circumstances, as this Adjudicating Authority can replace the IRP/RP, the same procedure may be applied to the Liquidator also by either applying and extending the same provisions to the Liquidator or by invoking the inherent powers under Rule 11 of the NCLT Rules, 2016.
# 5. I do not find any valid reason for not considering the instant application, as the applicant is seeking to relieve him as Liquidator of the corporate debtor, on the sole ground of his ill health by duly filing the medical reports. As rightly submitted by the learned counsel for the applicant, this authority can invoke its inherent power in the interest of justice and in the circumstances of the application.
# 6. Accordingly, the CA No. 941/2019 is disposed of as under:-
(i) The applicant i.e. Shri Bhupesh Gupta, is relieved from the position of Liquidator of M/s Supreme Tex Mart Limited from the date of handing over the charge to the new Liquidator, who is appointed under this order. However, Shri Bhupesh Gupta is liable and responsible for all his acts, decisions, omissions and commissions, if any, done during the period of liquidation and till he hands over charge to the newly appointed Liquidator.
(ii) In view of relieving of Mr. Bhupesh Gupta as Liquidator of the corporate debtor, I appoint Mr. Ravinder Kumar Goel, having Registration No.IBBI/IPA-001/IP-P00705/2017-2018/11252 and email address: ravinderkumargoel@yahoo.in, Mobile No. 99140-92211 as the Liquidator of the corporate debtor in place of Mr. Bhupesh Gupta. The Law Research Associate of this Tribunal has checked the credentials of Mr. Ravinder Kumar Goel and there is nothing adverse against him.
(iii) Mr. Bhupesh Gupta shall hand over the entire records and assets of the company which have been taken over by him in the course of the corporate insolvency resolution process/liquidation to Mr. Ravinder Kumar Goel, within two weeks.
(iv) Mr. Ravinder Kumar Goel, the newly appointed Liquidator shall take over the charge of the aforesaid record and assets and perform his duties as required under the Code and the Regulations within two weeks from today and w.e.f. the date of taking over the charge, whatever fees and benefits conferred on Mr. Bhupesh Gupta, shall be applicable to Mr. Ravinder Kumar Goel, the newly appointed Liquidator.
(v) Mr. Ravinder Kumar Goel, Liquidator is directed to send regular progress reports as envisaged under Regulation 15 of IBBI (Liquidation Process) Regulations, 2016.
The copy of this order be supplied to the learned counsel for the applicant. The Registry is also directed to send copy of the order to the outgoing Liquidator and the incoming Liquidator.
Accordingly, CA No. 941 of 2019 stands disposed of.
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Blogger’s Comments; NCLT derives inherent powers from the following provisions.
a. Rule 11 of the NCLT Rules, 2016 is carefully worded:
“11. Inherent Powers. – Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Tribunal to make such orders as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Tribunal.”
b. Section 16 of the General Clauses Act, 1897 reads as follows:
“Power to appoint to include power to suspend or dismiss. Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.”
These are important provision in understanding how NCLT has the inherent power to remove a Liquidator who has been appointed.
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