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   Corporate Insolvency Resolution Process (CIRP)

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CLARIFICATION REGARDING APPLICABILITY OF REGULATION 40C OF CIRP REGULATIONS

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I have been appointed as RP in the matter of CIRP initiated against PVS Memorial Hospital Private Limited. The RP had issued the Expression of Interest and had received EOI from various Prospective Resolution Applicants on 14th March, 2020. The list of prospective applicants were published on 24th march, 2020 and the date of issuing the final list of prospective applicants was fixed for 29th March, 2020. However, on 24th March, 2020, the Hon’ble PM of India had declared nationwide lockdown, which had resulted practical difficulties to continue the process. Further to that the IBBI had inserted Regulation 40C extending the timelines under the code. So the timelines specified in Form G published by RP got automatically extended. As a result of which the time limit for submitting the objections by Prospective applicants marked as “ineligible” also got extended. As per the above the entire timelines got extended in view of the Lockdown imposed by Central Government for all activities that could not be completed due to such lockdown. At present, a new Circular issued by Ministry of Home Affairs 40-3/2020(DM-IA) dated 30th May, 2020, wherein it is specified that the lockdown will be extended in Containment Zones up to 30.06.2020. There is no clarity on the extension of timelines and its applicability to CIRP guidelines. However, the applicability of Reg 40C is not clarified by IBBI or ICSIIP. There exists a conflict of interest as to whether the period of lockdown as stipulated in Regulation 40C is effective till 30.06.2020. If the time period is extended as per 40C, the prospective Applicants marked as ineligible have a claim on the process and such claim at later point will adversely affect the process In view of the above, I request you clarify whether the initiation of procedures under the CIRP will be considered as a contravention of the provisions of the 40C.

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6/9/2020 4:16:39 PM Click to view reply

Transit period of reply of CD to the Demand Notice of OC

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As per section 8(2) XD can send reply to the demand notice for existence of dispute within 10 days of receipt of notice & OC can file Application after expiry of 10 days from receipt of demand notice to CD. If CD despatched reply on 10th day and it recd to OC on 14th day, but as per sec 9(1) OC filed Application on 11th day of receipt of demand notice to CD. What about of transit period of reply of CD?

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4/9/2020 11:41:41 AM Click to view reply

Confirmation of Minutes

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How are the Minutes of the COC confirmed and who will sign the final confirmed Minutes(IRP/RP or all the CoC Members as well)

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2/5/2020 12:02:32 PM Click to view reply

Record of Attendance

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How to record the Attendance of the Participants who attend the Meeting through the Video Conferencing.

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2/5/2020 12:01:46 PM Click to view reply

Progress Report

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Is the Progress Report required to be prepared by the IRP till order of the NCLT is received to appoint RP in the place of IRP or till the next COC Meeting after the said order is received.

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2/5/2020 12:01:06 PM Click to view reply

IBBI (IRP for Personal Guarantors to Corporate Debtors) Regulations, 2019

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I am  the Resolution Professional for the Corporate Debtor. The Creditors have decided to proceed with Insolvency Resolution Process against the personal Guarantors of the Corporate Debtor. In this regard, can the Resolution Professional of the Corporate Debtor be the Resolution Professional for the Personal Guarantor of such Corporate Debtor also? Whether yes or no? Since, the Regulations mention that the resolution Professional should independent of the guarantor and the meaning of independent of the guarantor means that he should have not been a Resolution professional, Interim resolution Professional or a liquidator in respect of the Corporate Debtor. Request you to please clarify the same and oblige.

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12/11/2019 5:04:50 PM Click to view reply

CIRP

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As [er S 3 (23)"Trust" is included in the definition of person.The term trust simply describes the fiduciary arrangement or relationship between entities.It is not a legal entity.Trustee is the person or entity with capacity to undertake legal formalities.If Trust is operational creditor in which name the application may be filed - Trust or Trustee With regards CS S Krishnan IP IBBI/IPA-002/IP/N00784/2018-19 /12433

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12/7/2019 5:25:07 PM Click to view reply

Code of conduct of Insolvency Professional

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Iam a pensioner of Indian Bank..I took VRS form Indian bank and I was relieved from Inidian Bank in august 2016.. Now Iam not employee of Inidian Bank..Whether I have to make disclosure under Regulation 8 and 8A of code of conduct for Insolvency Professional if Indian Bank is one of the Creditors. Whether I can take up the assignment If Indian Bank is one of the creditors S Krishnan Insolvency Professional Reg No:IBBI/IPA-002/IP/N00784/2018-19/12433

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11/24/2019 9:23:35 PM Click to view reply

CIRP - Appointment of Independent Directors and Women Director

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Please clarify, it there is requirement for appointment of independent director / women director as per Sec.149 of Companies Act 2019 during CIRP.

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11/7/2019 3:31:42 PM Click to view reply

CIRP or Liquidation

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I have been appointed as IRP in a matter. In this case the fee was not approved by the Hon’ble NCLT. However after discussion the fee an amount was agreed to be paid as Rs. 1 Lacs, out of which the applicant (who is also the only member of the Committee of Creditor) has paid Rs. 50,000/-. I have denied to be continued as the RP, and asked the CoC to advise some other IP to act as RP. Later on the CoC has advised that monthly fee of Rs. 20,000/- will be paid as IRP/ RP, which I have not agreed. Now I am not able to file the cost disclosure, because the fee is still not fixed. However in the second CoC, it was decided that the CD should be liquidated, and CoC is arranging a liquidator to takeover the charge. There is no asset available with the CD, and there is negligible chance of recovery of any amount? - What is the fee of IRP? - Whether I should approach the Adjudicating Authority for the Direction/ - If the CoC does not provide for the Liquidator, whether I have to continue as Liquidator also? - It is not clear whether presently the Company is under the process of CIRP or Liquidation?

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11/1/2019 5:24:43 PM Click to view reply

Appointment of Liquidator and other incidental Query

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Dear Sir, The CoC in its meeting, has decided to liquidate the CD. The CoC has to arrange for the liquidator. But even after passing of a week, they have not arranged for the same. The CoC has disapproved the publication of Form G, for publication of Expression of Interest, in the meeting of the CoC, and again confirmed the same by mail. Now the CoC is asking for the “resolution approving the fees of Liquidator and let NCLT appoint the liquidator”. In my opinion, if the Hon’ble NCLT appoints the liquidator, then it will also fix the fees of liquidator, and the CoC does not have power to fix the fee for Hon’ble NCLT appointed liquidator. Whether publication of the Form G may be dispensed, since CoC has decided for liquidation? Is there any compulsion that the RP has to continue as liquidator, if the CoC does not arrange for the Liquidator? The CoC is not approving the expenses for filing application u/s 19(2) or 60(5). Remedy available to RP for the same. Who will bear the cost of filing applications before the Adjudicating Authority?

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11/1/2019 1:32:37 PM Click to view reply

Forensic Audit

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The demitting office form of RP asks for the costs of examination of preferential, under/over valued, extortionate and fraudulent transactions. However, COC is not allowing the appointment of Forensic Auditor for studying the above. The COC opines as under : i. Forensic Audit is not mandated under IBC, in fact, the words Transaction Audit / Forensic Audit are not at all found in the Code or Regulations. As such, Forensic Audit / Transaction Audit is not mandated under IBC. ii. The principal outstanding in the Corporate Debtor’s account is equal to the bank guarantees invoked so there is no diversion apparently visible. iii. However, the RP has pointed out that the CD has written off many items in the balance sheet in the last four / five years ; iv. The corporate debtor has been operating account with other banks and recovered many debts in the past four / five years amounting to crore of rupees and has spent them without paying amount to financial creditor. Despite pointing out this repeatedly to sole COC member, the COC is not allowing examination of transactions by Forensic Auditor. Under this circumstances what are the options open to the Resolution Professional ? How can the Resolution Professional, despite having formed opinion about such transactions having taken place, give certificate in Form H in case a Resolution Plan is approved or in case an application for liquidation is to be filed

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10/24/2019 1:13:37 PM Click to view reply

CIRP RESOLUTION PLAN RELATED

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Can the networth certificate of a partner be accepted when resolution applicant is a partnership firm. The networth of the partnership firm is only Rs. 1.00 crore against the RFRP eligibility of Rs. 10.00 Crores. The Partners personal assets are more than Rs. 14.00 crores.

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10/22/2019 3:56:38 PM Click to view reply

Application under Section 60(5)

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As per Section 19(1) the personnel of the corporate debtor, its promoters or any other person associated with the management of the corporate debtor shall extend all assistance and cooperation to the interim resolution professional as may be required by him in managing the affairs of the corporate debtor. In this connection it may be noted that the CD is showing that they are extending assistance and cooperation. As per Section 19(1), only Interim Resolution Professional is authorized to file the application under Section 19(2). Hence in my opinion RP may not eligible to file the application under section 19(2). However there are certain issue, for which no solution is available. The CD was managed by 3 directors: The CD has taken an unsecured loan from the father of one of the Directors. The application was filed with the only objective to recover the amount from the CD. The son of the FC, has resigned from directorship w.e.f. October, 2017 and filed DIR-11, however Form DIR-12 was not filed till date. Due to dispute amongst the Directors, the business of CD has stopped and it did not remained as “Going Concern”. Directors have lodged complaints against each other in different forums. Audit of the CD has not been done for the year 2017, 2018 and 2019. Only one Creditor has filed his Claim as Financial Creditor (FC). The CoC is constituted with that FC only. The FC is father of one of the Directors, who has resigned. Whether he should be treated as Related Party. Unaudited Books of Account has been provided the CD. Whether the Books of Account may be relied? There is no fixed available with the CD. The only traceable asset was an Car (which may be valued around 75, 000), on which there is unpaid loan of Rs. 35,000/-. Other major assets is the debtors of the Company. Contact Details of those Debtors are not provided by the CD. As per CD the Debtor management was looked after by the erstwhile Director who has resigned from the Directorship. He has provided certain addresses of the Debtor to the IRP. Demand notices were sent to those Debtors asking for the payment of Dues. Demand Notices have also been sent to the Debtors, whose address is available at MCA site. However majority of them have informed that there is no such dues payable to the CD. How those debtors should be treated, who have denied the dues and for those whose address are not available? How it is to be determined whether these debtors are actual or fabricated? There are certain case, for which the decree has been passed, but the debtor has submitted the statement before the Court that he is not able to pay the amount. How this amount should be treated? As per the Books of account around Rs. 10 Lacs is lying with the director who has resigned. How it is to be determined? Whether application be also filed for Forensic Audit? The CoC has fixed the fee of the RP as Rs. 30,000/- (inclusive of expenses). The CoC has asked that all the expenses of Rs. 5,000/- or more is to be firstly approve by him. And the same will be paid subject to realizable of fund. There is only one member in CoC. Whether the RP is bound to follow the instruction of the CoC? Whether the RP may approach the AA for appropriate Direction? What should be the reasonable fee of the RP. The RP is working with limited support from the CoC. The Auditor of the Company has resigned, since his payment have not been made. Whether direction may be asked for the erstwhile auditor to complete the audit or the audit should be done by the newly appointed Auditor. Whether Application be filed under Section 19(2) or Section 60(5).

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10/18/2019 2:56:10 PM Click to view reply

CIRP

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As on the date of NCLT Order in July 19 U/s 9, CD's operations ceased 3 years back. There are no Workmen, no employees and also no directors on Company. All directors have resigned two years before in Aug 2017. All plant and machinery have been removed by the promoters. CD factor which is just land and building is in the custody of Company's banker having 81% voting right. Last audited B/S is of 31.3.2016. No current books of accounts or registers available. All communications to promoter director to his last known three addresses returned undelivered. Under the circumstance, it is possible to go directly for liquidation of CD. Can we wailve the construction of P&L A/c and B/S as on the date of NCLT order in the absence of books of accounts.

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9/21/2019 5:57:41 PM Click to view reply

IBC (Amendment) code 2019

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Section 4 of Amendment states that where CIRP is pending and has not been completed within 330 days, additional 90 days will be given. But what about those CD where 330 days has not expired as on Amendment Act date ? Will they also get additional 90 days?

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9/18/2019 1:45:55 PM Click to view reply

Forensic Auditor submitting report to one of the FCs

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A bank is one of the members of COC with 74.00 % share. The RP appointed a Forensic Auditor, the bank did not approve, compelled the RP to appoint an auditor of their choice. Now that Forensic Auditor of Bank's choice is not submitting his report to the RP, he is submitting his report directly to the Bank. Is he right in doing so ? Bank being only one of the members of COC and not the sole member, is the Forensic Auditor right in submitting his report to the Bank ? Further, technically, is the RP bound to share the Forensic Audit Report with the COC, discuss in COC meetings or is the RP expected to form his opinion on the basis of the report and proceed ?

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9/15/2019 7:10:55 PM Click to view reply

whether irp need to get order from aa on confirmation of his appointment as rp

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I was appointed as irp by nclt. now in the first meeting of coc, I am appointed as rp. whether I need to approach nclt for any order or I need to only report to nclt . further , whether I need to make disclosure afresh as rp on disclosure platform

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8/12/2019 11:18:45 AM Click to view reply

Cost of keeping the company as a going concern, not approved by COC

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The RP paid salaries to employees who have not been paid for about four months during CIRP, paid some contractors for maintenance, etc. out of some refund received from certain authority. This was informed to COC with bank statement and justification for each payment. COC simply observed that these expenses are not approved, without assigning any reason. However, the COC has paid professional fees of RP and his expenses from its coffers for concerned period / subsequent period. What is the position of RP in such an event ? In the Cost Disclosure at the end of CIRP, how to show the expenses not approved by COC ?

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8/1/2019 1:56:16 PM Click to view reply

CIRP-Status of CoC after filing of application for Liquidation

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After approval of CoC once the application of Liquidation is filed with AA till the order of liquidation by AA, what is the status of CoC? 1.Whether CoC meetings can be convened by RP in the interim period of filing of application of liquidation till the order by AA. 2.The decisions can be taken by the CoC as per the CIRP guidelines. 3. The periodical progress report on operational and other development is required to be filed with AA.

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7/30/2019 4:14:47 PM Click to view reply

IBBI compliance

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RP has to submit details to IBBI within 7 days of demitting office. what should be that date:- 1.Date on which CIRP completed 180/270 days or 2.Date on which liquidation order of the CD is passed by NCLT. 3. If matter goes into appeal the liquidation order confirmed by NCLAT. 4.Of the above options above, which ever is later.

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7/30/2019 10:04:03 AM Click to view reply

MCA Compliance

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In case of online compliance of MCA, Director's DIN is required. In case of company under CIRP, if the existing director's are not cooperating, how can RP or IRP do the compliance

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7/8/2019 11:38:38 AM Click to view reply

CIRP Process

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If the CD is a running company and generating revenue. Can the following costs be paid from the account of CD 1. IRP fee and Public Announcement Costs. 2. If CoC approved only a part of IRP fee, eg if the fee paid by the applicant is Rs 5 Lacs for the 1st month but CoC approves only Rs 3.5 Lacs. How the balance amount of Rs 1.50 Lacs will be recovered by the applicant. 3. In case the CD is a running organisation, can all CIRP costs be paid from the income of CD. H R Ahuja

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7/6/2019 2:07:25 PM Click to view reply

Interest on Cash Credit Account during CIRP

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A Company has been admitted to CIRP at the instance of unsecured financial creditor. The Cash Credit Account of the CD with Bank is standard and regular. Can Bank debit interest on Cash Credit outstanding during CIRP period?

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7/2/2019 12:31:48 PM Click to view reply

Director's remuneration during CIRP for a CD as a going concern

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If director's have been drawing remuneration before the initiation of CIRP, are they entitled to the agreed / approved salary during CIRP Period. In the instant case, directors are also the promoters of the Company.

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7/2/2019 12:28:36 PM Click to view reply

CIRP Process

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If an independent Management Company has entered into a management contract with a CD and later an application is filed u/s 9 or 10 for initiation of Insolvency against CD. The Management company has no equity stake in CD and is not a related party. Can the Management company submit a Resolution Plan in due course of CIRP process?

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6/29/2019 2:46:01 PM Click to view reply

CIRP Process

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1. If CoC does not approve the fee paid by applicant to IRP, but CD has funds available in Bank account, can it be reimbursed to applicant from Bank account. 2. If not, can the applicant revise its claim and include the fee and PA expenses paid but not approved by CoC

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6/29/2019 2:42:37 PM Click to view reply

Waiving off CIRP Expenses

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As per section 53 of code, CIRP cost need to be paid on priority over all expenses. But if the CIRP expenses have been met by the cashflows of going concern Corporate Debtor & being an MSME, Corporate Debtor itself is the Resolution Applicant, Can the Corporate Debtor waive off the CIRP expenses to be paid in Resolution Plan?

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6/28/2019 6:49:13 PM Click to view reply

Disclosure as per Circular dated 16th Jan, 2018

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AS per the Circular Para 4, I.P. must ensure disclosure of relationship of professionals appointed by him with the prospective resolution applicants within 3 days from the issuance of IM. Hence in that case whether it is expected that once prospective resolution applicants list is prepared same must be shared with the professionals appointed like registered valuers, auditors and they should be asked to make disclosure.

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6/28/2019 3:10:00 PM Click to view reply

if audited fiancial data are not available , how to prepare information memorandum

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I have been handling one case of cirp, the financial data for last two yeqrs are not available. promoters are not cooperating, can we go for form g in these circumstances.

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6/28/2019 9:51:12 AM Click to view reply

RECOVERY FROM DEBTORS DURING CIRP

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RP served notices to Debtors standing in the books of the company . Now can RP file application with NCLT for recovery from debtors during CIRP or should it be filed during Liquidation process, expecting a counter claim may be presented by the debtor.

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6/27/2019 6:39:47 PM Click to view reply

Funding of CIRP Cost

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A scenario - There is no fund with CD to take care of the CIRP Cost and COC, neither approves the taking of interim finance nor contribute to meet the same. Under the circumstances, should IRP / RP funds the CIRP cost from own resources. Also, If he /she funds the same then should he/ she charge interest on the same. If yes, then at what rate of interest?

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6/13/2019 2:51:00 PM Click to view reply

Sec 9 Form No 2 Given for consent at the time of making application. Corporate Debtor want my professional Consultancy in other Secretarial Matter

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Now the Corporate debtor wants my Secretarial Services independently. the case for CIRP is pending Before NCLT as it takes 3-6 month? Shall i accept the CS work till the pendency in NCLT ? or Shall i reject CS Proposal or Shall i Disclose the same to OC and to NCLT Once the Case is going to admit .

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6/7/2019 3:21:28 PM Click to view reply

After distribution of proceeds under Sec 53 of IBC,There is no funds in the company to spend. In such scenario, if the liquidator receives demand notice from government department. How to face it? There is no entry or disclosure about this demand in the financial statement for the three years prior to the date of liquidation.

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Liquidation process

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5/30/2019 5:55:13 PM Click to view reply

Corporate Debtor is 100% holding shares in a company (i.e. Wholly owned subsidiary). There is receivable from WOS in books of Holding Company. From whom the liquidator of Holding company will recover the receivable amount? Both the company common director and shareholder. WoS total networth is eroded.

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Corporate insolvency resolution process

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5/30/2019 5:48:24 PM Click to view reply

right of a guarantee holder

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Y, a bank has given loan of Rs. 100 crores to company X and promoters have given personal guarantee and also corporate guarantee given by an associate company. X has filed an application under Regulation 10 which was admitted. Through resolution process Y, has recovered Rs. 50 crores out of Rs. 100 crores due from X. Can Y proceed against the promoters and associate company for recovery of balance Rs. 50 crores.

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5/27/2019 4:28:22 PM Click to view reply

Corporate Debtor is having inventories - finished goods, raw materials, work in progress etc. Can a registered valuer for Plant and machinery do valuation of those inventories?

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liquidation process

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5/26/2019 9:19:19 PM Click to view reply

Liquidator checked the financial statements for two financial years prior to the date of liquidation order (Mar 2019). Liquidator received demand notice from Government department stating their dues for the financial years prior to financial year 2014-15. They have not submitted the claim form. The liquidator submitted the list of stakeholders with NCLT. Whether need to accept the claim form? Can direct the suspended director to take responsible for the said claim?

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Liquidation process

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5/25/2019 4:59:50 PM Click to view reply

Resolution profession / liquidator can view the books of accounts only for two financial years prior to the date of corporate insolvency resolution process / liquidation process. Liquidator is under the process of distribution sale proceeds to the claimants. Liquidator comes to know that the company is liable to make payment to a person, from whom not received claim form within the specified period. The claimant may be any person or any state government or central government relating to a period

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Liquidation Process

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5/23/2019 7:12:28 PM Click to view reply

Corporate Debtor is a Holding Company, which is having a wholly owned subsidiary (WoS). A person is appointed as RP for CD. WoS is liable to pay to CD huge amount. From whom RP will recover the amount due from WoS?

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Corporate Insolvency Resolution Process

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5/23/2019 7:02:48 PM Click to view reply

CIRP

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under which provision of IBC or CIRP regulations, form g can be reissued (afresh) by the RP after rejection of the Resolution Plan by the COC. Number of days left 55 for completion of CIRP after availing of extension. H.C.Manchanda

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5/22/2019 7:07:33 PM Click to view reply

CIRP

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only 55 days left when i have taken over from the existing RP. COC consists of home buyers only. No money left in the account. buyers have rejected the resolution plan. what to do now. kindly also advise the reporting requirement for taking over as RP to IBBI, NCLT, IPA.

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5/20/2019 8:10:00 PM Click to view reply

Non Cooperation of CD

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Inspite of my visit to the registered office of the CD and writing the mail to CD, the CD has failed to hand over the financial and other records and in meantime I have received the Claim of 2 creditors and further CD has stated that all the records are lying at factory work place and not at Registered Office and hence how to proceed further in this matter. Even I have written e-mail to CD to provide all the documents at registered office.

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5/20/2019 11:50:31 AM Click to view reply

Can Insolvency Professional - not having COP represent cases in NCLT

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I don't have COP of Lawyer, CS, CA or CMA but I am registered Insolvency Professional. I wanted to know provisions under which I can represent the cases relating to IBC, 2016 or it is not possible till I am IRP/RP or Liquidator of the Company? Thanks and warm regards, Rajesh

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5/20/2019 11:40:12 AM Click to view reply

CIRP

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In CIRP of corporate debtor filed u/s 7 of IBC, the CBI investigation and proceeding in the court are underway for the fraud committed by the company and it directors. The promoter directors have fled the country and have been declared proclaimed offenders. Under the circumstances whether for preferential transaction u/s 43 with associates(which are also sold out by their lenders) and fraudulent transaction u/s 66 , the application with AA needs to be filed and will be of what consequence as it will be just one more case filed.

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5/18/2019 12:00:58 PM Click to view reply

UNDER CIRP - NON COOPERATION OF CD

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When the CD is not cooperative, the option under Section 19 (2) the RP can move an application and the AA will pass necessary orders under Section 19(3). But the issue is in my case the corporate office address is wrong, and the CD is not giving a single paper. Statutory Auditor's report is forged. Shall we move an application for liquidation within 180 days? Please guide.

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5/15/2019 8:54:04 PM Click to view reply

CIRP

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Whether last date for submission of Resolution Plan scheduled in Form G can be preponed with the approval of COC and prospective Resolution Applicants.

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5/15/2019 8:46:29 PM Click to view reply

Submission of provisional list of resolution applicants to Committee and all the prospective resolution applicants

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Dear Sir, As per Regulation 36A (1)) provisional list of prospective resolution applicants to be submitted to the Committee and to all the prospective resolution applicants. The word used is all, hence provisional list shall be made available to all the prospective resolution applicant. However in case of final list under Regulation 36A(12), the final list to be submitted only to the Committee. hence, kindly let us know the legislative intent of making the provision list public to all the prospective resolution applicant and the final list only to the committee. Thanks Vinod

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5/15/2019 8:23:24 PM Click to view reply

Valuation Report

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One of the companies which is in Resolution Process and which has heavy liabilities and is heading for Liquidation, does not have any great assets, except some computers, printers, inspection equipment and other small assets, the realizable value of which may not exceed Rs. 1 lakh. It is unable to fund for the valuation reports to be obtained. To proceed further, however, valuation reports from two independent registered valuers of Fixed Assets is mandatory. Can we seek direction from the Adjudicating Authority for any relief to overcome this problem.

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5/15/2019 8:06:03 PM Click to view reply



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