Decision of the Committee of Creditors to liquidate, intimated by the Resolution Professional under Section 33(2), after both resolution plans of the sole resolution applicant were voted down at the 19th CoC meeting on 17.12.2018. 'in the 21st Meeting of the CoC, approval of the members of the CoC of ABG Shipyard Limited, was accorded, to liquidate the Corporate Debtor and authorize the Resolution Professional to file an application seeking liquidation' (p.7); the Bench 'confirm[ed] and approve[d] the CoC's Resolution dated 20.02.2019 recommending for Liquidation of the Corporate Debtor Company' (p.25).
The order prints no claim totals at any stage. It records only that 'The Resolution Professional, so appointed, made public announcement on 05.08.2017 as per the provisions of section 15 of the Code calling the claims from the creditors in view of the order dated 01.08.2017 ... Consequent upon public announcement, IRP received claims from different creditors, members, stakeholders, employees, the workmen etc.' (p.6), without a received or admitted figure. No petition default amount, no financial-creditor or operational-creditor totals, and no liquidation-stage claim figures appear. The only creditor-side money figures in the order are the Rs. 9,55,82,571/- received from the Coast Guard through the Controller of Defense and the Rs. 2,75,00,000/- apportioned from it to workmen's dues, and the Bank of Baroda fixed deposits - none of which is a claim total. The NULLs are the document's own silence, not a gap in extraction.
The order contains no valuation at all - no valuer is named, and no fair value or liquidation value figure is printed. This is a s.33(2) commencement on the CoC's commercial decision, and the Bench expressly declined to look behind that decision, so no valuation was recited.
Also disposed of in this order
Directions in the liquidation I.A. No. 139 of 2018 — Filed by the Resolution Applicant Liberty House Group PTE LTD u/s 60(5) seeking a declaration that it is an eligible Resolution Applicant including under Section 29A and to set aside the RP's impugned order dated 16.04.2018 disqualifying it. 'The aforesaid IA has been adequately dealt with in above referred paragraphs and the said IA becomes infructuous in view of the order dated 18.02.2019 of this Tribunal declaring that Resolution Professional of ABG Shipyard can convene meeting of the CoC and submit application for liquidation before this Adjudicating Authority, in case no resolution plan(s) are in the offing. Accordingly, IA 139 of 2018 stands dismissed as being infructuous.' (p.8). This is the application on which the Tribunal had, on 20.04.2018, directed status quo on the opening of the second bid, and on 23 August 2018 directed both LHG plans to be put to the CoC.
A claim adjudicated I.A. No. 348 of 2017 — Filed by Sunil Kumar Jain & Ors., employees and workmen of ABG Shipyard Ltd., for payment of outstanding salaries, wages and other dues and regular monthly payments since 1st August, 2017, and for removal of the Resolution Professional Mr. Sundaresh Bhat and appointment of an alternate person in his place (p.9). The RP replied that he 'is not averse or opposed to paying salary and wages to the workmen if interim finance to cover such payment is approved and released by the CoC' but that 'In the absence of financial resources, coupled with absolute non-cooperation by the existing staff of the company, it is not possible for the RP to pay the salary and wages of the workers' (p.9). The RP and CoC conceded receipt of Rs. 9,55,82,571/- (Rupees Nine Crores Fifty-Five Lakhs Eighty-Two Thousand Five Hundred and Seventy-One) from the Coast Guard, through Controller of Defense, and agreed to apportion Rs. 2,75,00,000/- (Rupees Two Crores Seventy-Five Lakhs) towards workmen's dues, for which a specific order was passed in IA 78 of 2018 on 25.04.2018 directing deposit with the Registry of the NCLT. 'In view of the above orders in IA 78 of 2018, IA 348 of 2017 stands disposed of.' (p.10). The prayer for removal of the RP is not separately ruled on.
Directions in the liquidation I.A. No. 141 of 2018 — RP's avoidance application u/s 60(5) r/w Sections 43, 45 and 66 in relation to preferential, undervalued and fraudulent transactions before the insolvency commencement date. Transactions as printed (p.11-14): (i) transfer of right, title and interest in 7 vehicles to ABS Resources Private Limited ('ABGRPL'), vendor code 3000020, on 31st March, 2016 for a consideration of Rs. 27,00,000/- still outstanding as on 01.08.2017 and without the secured creditors' no-objection certificate; (ii) Rs. 15,96,85,475/- transferred to ABGRPL between 26.10.2015 and 06.04.2017 through accounts with ICICI Bank and Vijaya Bank as ad-hoc loans/advances, ABGRPL having earned revenue of Rs. 5.67 crores and having a negative net worth of Rs. 158.22 crores for the financial year 2013.14; (iii) Rs. 64,00,00,000/- transferred to Mahavir Distributor Private Limited ('MDPL'), vendor code 232447, between 21.04.2014 and 28.04.2014 through ING Vysya Bank Limited, with a total outstanding balance as at 01.08.2017 of Rs. 80,44,00,000/-, MDPL having earned revenue of Rs. 2.09 crores and having a negative net worth of Rs. 3.16 crores for the financial year 2015-16; (iv) Rs. 34,66,93,250/- transferred to ABG International Private Limited ('AIPL'), vendor code 300000, between 16.09.2015 and 16.04.2016, of which transactions amounting to Rs. 31,00,00,000/- 'were wrongly recorded against ABG Energy Himachal Pradesh Limited account'; (v) Rs. 97,18,00,000/- advanced in March, 2013 to Nor Crane & Winch Private Limited ('NCWPL'), vendor code 210220, recorded as SAP journal/clearing entries 'which appear to have been carried out with an intent to falsify accounts', NCWPL having been struck off from the ROC website, with the total outstanding due as on 1st August 2017 being Rs. 97,18,00,000/-. Finding as printed: 'we have decided that impugned transactions mentioned in Para 7(a), (c) and (d) are preferential transactions as defined in the sub-section 2(a) of Section 43 of the IBC as these transactions have been executed within the look back period of two years before the commencement of Insolvency proceeding and are therefore covered under section 43(4)(a). However, the transactions mentioned in Para 7(b) and (e) are not preferential transactions as these transactions have been executed before the look back period ... the relevant period (the Look Back period) for the impugned transactions is starting from 31st July, 2015 1st August, 2017.' 'Accordingly, the IA filed by the Resolution Professional under Section 43, 45 and 66 of the IBC is allowed. No Order as to costs.' (p.15). See contradiction_in_order: the findings cite letters in 'Para 7' while the transactions are enumerated in para 5.3.3, and the scanned text layer does not preserve the sub-paragraph letters, so which named counterparty each letter refers to cannot be determined from this document.
Directions in the liquidation I.A. No. 204 of 2018 — RP's application u/s 60(5)(c) on transactions not in the ordinary course of business. As printed (p.16-17): (a) USD 63,517,662 amounting to Rs. 421,41,65,692/- transferred to Varda Seven PTE Ltd. ('Varada') between October 2012 and September 2014 through an account with Royal Bank of Scotland, of which, per the Special Audit Report of M/s. Desai Saksena & associates, 'such loans to the extent of Rs. 285,76,00,000/- were used towards payment of novation shipping contracts', the Annual Report for the financial year 2015-16 stating the loans and advances were interest free; (b) Rs. 199,66,25,200/- transferred between September, 2015 and March, 2016 and Rs. 125,70,88,435/- transferred prior to April, 2015 as loans and advances to Banal Investments and Trading private Limited ('Banal'), which earned no revenue for the financial years 2011-12 and 2012-13, has a negative net worth of Rs. 19.06 lakhs and was struck off from the Registrar of Companies on 28.04.2017. Finding as printed: 'impugned transactions mentioned in Para 6(b) is open for investigation to ascertain the nature of the transaction ... executed within the look back period ... However, the transaction mentioned in Para 6(a) is not preferential transaction as this transaction has been executed before the look back period'. 'Accordingly, the IA filed by the Resolution Professional under Section 43, 45 and 66 of the IBC is allowed. No Order as to costs.' (p.17-18). The findings cite 'Para 6' although the transactions are enumerated in para 5.4.4, and the paragraph describing the Banal transfers concludes that 'the aforesaid business transaction was entered into between the Respondent Company and MDPL for a fraudulent purpose' - MDPL being the counterparty in IA 141, not in this application.
Directions in the liquidation I.A. No. 303 of 2018 (printed once as 'IA 3803/2018') — RP against Bank of Baroda, CFS Mumbai Branch, for appropriating fixed deposits in violation of the moratorium. Fixed deposits as printed (p.18): FD No. 29100300001777 for Rs. 9,29,31,603/-, FD No. 29100300001820 for Rs. 43,51,081/-, FD No. 29100300001821 for Rs. 1,01,134/-, Total Rs. 9,73,83,818/-; the Bank stated by email dated 19.07.2018 that the FDs 'were terminated and appropriated by the Bank on 02.08.2017 towards loan liablity', the moratorium having been declared on 01.08.2017 and forwarded to all banks by ICICI Bank by email dated 03.08.2017. The Bank had confirmed that as on 01.08.2017 'an amount of Rs. 9.64 crores were kept as margin money'. Directions: '(a) The Respondent Bank is directed to roll back/reverse the wrongfully appropriated amount of Rs. 9,74,62,608/- ... into the TRA account of the Corporate Debtor Company maintained with ICICI Bank. (b) The Respondent Bank is directed to pay the Applicant accrued interest on the wrongfully appropriated amount of Rs. 9,74,62,608/- ... from the date of wrongful appropriation of the fixed deposit till the actual date of the reversal / roll back'. 'Accordingly, the IA filed by the Resolution Professional under Section 60(5) read with Section 14 & 74 of the IBC is allowed. No Order as to costs.' (p.19). The sum directed to be reversed differs from the sum claimed - see contradiction_in_order.
Directions in the liquidation I.A. No. 321 of 2018 (printed in the running headers as '321 of 20189' and once as '2321/2018') — RP's application u/s 66 concerning ABG Shipyard Singapore Pte. Limited ('ASSPL'), a wholly owned subsidiary incorporated on 8 February, 2010 in Singapore. As printed (p.20-22): in 2012 the Corporate Debtor invested in 42,97,100 1% redeemable preference shares of USD 1/- each at a premium of USD 9/- each amounting to USD 42,971,000/- and provided loans and advances of USD 24,032,329/-, a total of USD 67,003,329/-; on 17.12.2012 it redeemed 85,000 preference shares equivalent to USD 8,50,000/-; ASSPL invested in 4,34,645.8558 units of the Emerging Markets Diversified Fund of Standard Chartered Trust (Cayman) Limited of face value USD 100/- per unit; under the Master Restructuring Agreement dated 28 March, 2014 with ICICI Bank Limited as monitoring institution the investment was to be liquidated and repatriated within two months of the CDR Letter of Approval dated 23rd April, 2014, extended on the promoters' requests to 31st October, 2014 and then to 31st March, 2015, and the concurrent auditor's certificate directed at the monitoring committee meeting of 29th July, 2015 was never obtained; as per the financial statements as on 31st March, 2017 the outstanding amounts to USD 66,153,329/-. Finding: 'impugned transaction is open for investigation to ascertain the nature of the transaction and the intent behind execution of this transaction. The aforesaid transaction has the root and its execution before the look back period of two years'. 'Accordingly, the IA filed by the Resolution Professional under Section 66 of the IBC is allowed. No Order as to costs.' (p.22-23).
Directions in the liquidation IA 78 of 2018 in CP (IB) 53 of 2017 (referred to, order dated 25.04.2018) — Direction on the destination of the workers' money, given as part of this order: 'an amount of Rs. 2,75,00,000/- (Rupees Two Crores Seventy-Five Lakhs) which has been received from the Coast Guard, Controller of Defense, is received towards the work done by the workers and the services rendered by the employees, which has been deposited by the RP vide order dated 25.04.2018 passed in IA 78 of 2018 ... the amount received towards workers' dues and salary cannot form the part of the liquidation assets of the Company nor it should be dealt with under waterfall mechanism provided under Section 53 of the IB Code, and in our view, such amount is to be distributed amongst the workers and the employees towards the salaries of the workers and employees. as per law' (p.26), following National Textile Workers Vs. P.R. Ramkrishnan and Others and O.N.G.C. Ltd. Vs. O.L. of Ambica Mills Co. Ltd. & Ors.
Directions in the liquidation — Residual sweep: 'Any other IA(s), if pending, also stand(s) infructuous and disposed of in view of the above order.' (p.26). No such applications are identified by number.