Delhi High Court: In a petition filed seeking a direction to the IBBI Respondent No.2, i.e. (‘IBBI’) to take appropriate steps against the Liquidator (respondent 4) and to establish appropriate guidelines for handling the conduct of suspended Insolvency Professionals. Subramonium Prasad*, J., exonerated respondent 4 from charges related to the non-refundable participation fees prescribed through several public announcements, however, was found guilty of paying excess fees to BDO Restructuring Advisory LLP. The Court further chose not to interfere with the IBBI’s findings on this charge but modified the suspension order to the period already served by the Liquidator.
In the present case, pursuant to the application filed by ICICI bank under Section 7 of the Insolvency and Bankruptcy Code, 2016 (‘IBC’), National Company Law Tribunal (‘NCLT’) initiated the process of Corporate Insolvency Resolution Process (‘CIRP’) against ABG Shipyard Limited (‘Corporate Debtor’), and appointed respondent 4 as the Interim Resolution Profession of the Corporate Debtor
On 25-04-2019, the NCLT Ahmedabad directed that the Corporate Debtor should undergo liquidation under Section 33(2) of the IBC and the respondent 4 was to act as a Liquidator to discharge duties under Section 35 of the IBC.
After four failed public auctions, the respondent 4 filed application to the NCLT seeking permission to dispose of the assets of the Corporate Debtor by way of private sale in terms of Regulation 33(2)(b) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (‘the Liquidation Regulations’), the NCLT Ahmadabad vide order 02-12-2020 allowed the respondent 4 to proceed with the private sale of the assets by way of Swiss Challenge Process.
Under the Swiss Challenge Method, an initial bid is made and approved. Then, other bidders submit counter-bids. The original bidder has the right to first refusal and to match the highest counter-bid. If they match it, they win; if not, the highest counter-bidder wins.
The First Swiss Challenge Process Failed. In the second Swiss Challenge Process, the petitioner along with two other companies placed their bid of Rs. 431 crores for the Dahej material land scrap (“Dahej Materials”) of Corporate Debtor and declared as an anchor bidder by respondent 4. While inviting counterbid, respondent 5 made a counter bid of Rs. 627.5 crores.
Respondent 5 then filed an application before NCLT seeking direction to the respondent 4 to consider and accept counteroffer for the consolidated assets, the NCLT allowed respondent 5 to inspect the assets of the Corporate Debtors, pursuant to site visit, the respondent 5 increased its offer to Rs. 675 crores for the consolidated assets of Corporate Debtor.
After being aware of the increased bid presented by the respondent 5, the NCLT vide order 16-08-2021 allowed the respondent 4 to cancel the Second Swiss Challenges Process.
The petitioner then challenged the decision dated 16-08-2021 in the National Company Appellate Tribunal (‘NCLAT’). On 02-09-2021 NCLAT stayed the order dated 16-08-2021. Later, NCLAT dismissed the petitioner’s appeal on 10-12-2021.
The Petitioner then filed an appeal with the Supreme Court, challenging the order dated 10-12-2021 of NCLAT. The Supreme Court again dismissed the appeal on 26-08-2022.
IBBI vide order dated 28-09-2022 suspended respondent 4 in the matter of the contraventions and misconduct of the respondent 4 during commencement of liquidation process of the Corporate Debtor.
The Court, after perusal of facts and contentions, exonerated respondent 4 from charges of contravention of prescribing non-refundable participation fee. The only charge for which the Court held respondent 4 guilty was paying excess fee to a support service called BDO Restructuring Advisory LLP.
The Court remarked that “As far as charge of contravention of prescribing non-refundable participation fee of Rs.5,00,000, Rs.10,00,000, Rs.10,00,000 and Rs.50,000 vide public announcements made on 17-09-2019, 27-09-2019, 21-10-2019 and 11-11-2019 is concerned, the Court has exonerated respondent 4 of the said charges. However, he has been found guilty only of charge of paying excess fee to a support service called BDO Restructuring Advisory LLP.”
The Court while dismissing the petition modified the suspension order given by IBBI to the period respondent 4 already served.
[RK Industries Unit II LLP v. Union of India, 2024 SCC OnLine Del 4159, Decided on 28-05-2024]
*Judgement by: Justice Subramaniam Prasad
Advocates who appeared in this case :
For Petitioner: Rakesh Kumar, Preeti Kashyap, Ankit Sharma, Varun Pandit and Yash Dhawan, Advocates.
For Respondent: Rakesh Kumar, CGSC for UoI.
Vikas Mehta, Rashi Rampal, Apoorv Khaton and Ankit Vashisht, Advocates.
Apoorv Khator, Advocate for IBBI.
Milanka Chaudhury, Ms. Ashly Cherian and Swet Shikha, Advocates for R-4.
Aman Raj Gandhi, Parthasarathy Bose and Panchi Agarwal, Advocates for R-5.
