The Liquidator – A Demigod Under the Insolvency and Bankruptcy Code, 2016?
Recently on August 28, 2022, a three-judge bench of the Supreme Court of India delivered a judgement in R.K. Industries (Unit-II) LLP vs. H.R. Commercials Private Limited and Others, interpreting the provisions of IBC concerning the powers of the liquidator vis-à-vis mode of sale of assets by the liquidator. This watershed judgement reaffirms the powers available to the liquidator to decide the best mode of sale for maximising the value of assets of the CD.
Under the Insolvency and Bankruptcy Code, 2016 (“IBC”), an order for liquidation is passed by an Adjudicating Authority, i.e., the National Company Law Tribunal (“NCLT”), when the corporate insolvency resolution process (“CIRP”) of a corporate debtor (“CD”) fails.
Liquidation is initiated when the NCLT:
- Does not receive a resolution plan during CIRP.
- Rejects the resolution plan submitted under Section 31 of the IBC.
- Passes an order for liquidation based on the approval of Committee of Creditors (“CoC”).
- Passes an order for liquidation resulting from an application made by an aggrieved person for violation of the resolution plan.
The liquidator is appointed vide the liquidation order passed by the NCLT, and ordinarily, the resolution professional appointed for conducting the CIRP will be appointed as the liquidator. A liquidator, on his appointment, gets the powers of the board of directors, key managerial personnel, and the partners of the corporate debtor. Among other things, a liquidator can verify the claims of all the creditors, can take into his custody or control all the assets, property, effects, and actionable claims of the corporate debtor, etc. While a resolution professional acts under the instructions of the CoC during a CIRP, the liquidator is not bound by the opinion or advice provided by the stakeholders’ consultation committee (“SCC”) during the liquidation process of a CD. As a result, under the scheme of the IBC, the liquidator has been given broad powers to ensure that the liquidation of a corporate debtor’s assets can be carried out with minimal disruption in order to maximise the realisation from such assets.
Facts in Brief:
The CD in R.K. Industries (Unit-II) LLP was ordered to be liquidated vide order of NCLT dated April 25, 2019. Following that, the liquidator held 5 (five) e-auctions, the first 4 (four) of which failed auctions were for the sale of consolidated assets of the CD, and the fifth one offered sale of the assets on a stand-alone basis; however, the majority of assets did not attract any interest in the fifth e-auction. Under the circumstances, an application was made to the NCLT for conducting a private sale which was granted and the “Swiss Challenge Process” was adopted for the sale of certain assets of the CD (Dahej material) through a private sale. The first Swiss Challenge Process was unsuccessful, and so a second one was conducted wherein the appellant submitted the bid, an earnest money deposit, and an affidavit stating that it will be bound by the terms of the Swiss Challenge Process.
The terms of the Swiss Challenge Process (Anchor Bid Document), inter alia, were:
“e. It is clarified that issuance of the Process Document does not create any kind of binding obligation on the part of the Liquidator or ABG to effectuate the sale of the assets of ABG.”
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“x. The Liquidator reserves the right to cancel, abandon or reject a Bidder/Successful Bidder at any time during the process, and the Liquidator also reserves the right to disqualify a Successful Bidder, in case of any irregularities found such as ineligibility under the I & B Code.”
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“y. Liquidator of ABGSL, reserves the right to suspend/abandon/cancel/extend or modify the process terms and/or documents and/or reject or disqualify any Bidder at any stage of process without assigning any reason and without any notice liability of whatsoever nature.”
While the second Swiss Challenge Process was being challenged before the NCLT, Welspun Steel Resources Private Limited (Respondent No. 7) submitted a bid much higher than the appellant for the purchase of both the Dahej Material and the land (Shipyard). SCC was of the view that a composite sale of the Dahej Material and the Shipyard would be more beneficial than the sale of the Dahej Material alone. When the hearing for the application filed by the appellant was taken up, NCLT passed an order on August 16, 2021, permitting the liquidator to go in for Private Sale of all the assets of the Corporate Debtor and complete the entire sale process in consultation with the SCC within a period of three weeks. The liquidator was also directed to permit all the parties before the NCLT to participate in the bidding process.
The order of the NCLT was challenged before the National Company Law Appellate Tribunal (“NCLAT”) and the NCLAT held that the second Swiss Challenge Process would stand cancelled, and that the private sale process should be undertaken in accordance with the directions contained in NCLAT’s judgment and as per relevant legal provisions.
Aggrieved by NCLAT’s judgement, the appellant in R.K. Industries (Unit-II) LLP filed a limited appeal with regard to the directions issued in the penultimate paragraphs of NCLAT’s judgement of restarting the process of private sale after issuing an open notice to all prospective buyers instead of confining the same to the parties who had earlier participated in the process.
The Supreme Court framed the following issues:
- Whether the liquidator was justified in discontinuing the Second Swiss Challenge Process for the sale of a part of the assets of the CD, wherein the appellant was declared an anchor bidder, and opting for a private sale process through direct negotiations in respect of the composite assets of the Corporate Debtor?
If so, was the NCLAT justified in directing the liquidator to restart the entire process of Private Sale after issuing an open notice to prospective buyers instead of confining the process to those parties who had participated in the process earlier?
Holding of the Supreme Court:
The Supreme Court expounded the following holdings on the aforementioned issues:
- On a conjoint reading of various provisions of the IBC and Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (“Liquidation Regulations”), the liquidator is authorised to sell the immovable and movable property of CD in liquidation through a public auction or a private contract, either collectively, or in a piecemeal manner.
- The liquidator can apply to the NCLT for appropriate orders and directions considered necessary for the liquidation of the CD.
- The liquidator is permitted to consult with the stakeholders who are entitled to a distribution of the sale proceeds. However, the proviso to Section 35(2) of the IBC makes it clear that the opinion of the stakeholders will not be binding on the liquidator. Though the advice offered is not binding on the liquidator, he must give reasons in writing for acting against such advice.
- Regulation 33 of the Liquidation Regulations is couched in a language that shows that ample latitude has been given to the liquidator, who may “ordinarily” sell the assets through auction, thereby meaning that, in peculiar facts and circumstances, the liquidator may directly go in for a private sale.
- The liquidator can approach the NCLT in terms of Section 35(1)(n), IBC read with Regulation 33(2) of the Liquidation Regulations to seek permission to sell the assets of the CD through Private Sale.
- The issuance of the Anchor Bid Document does not create any binding obligations on the liquidator to proceed with the sale of the assets of the CD; the Anchor Bid Document does not constitute an offer, a commitment or an assurance of the Liquidator. It is a well-settled principle that in matters relating to commercial transactions, tenders, etc., the scope of judicial review is fairly limited, and the court ought to refrain from substituting its decisions for those of the tendering agency.
- The Swiss Challenge Process is just another method of private participation that has been recognised by this Court for its transparency. Ultimately, the IBC has left it to the discretion of the liquidator to explore the best possible method for selling the assets of the CD in liquidation, which includes a private sale through direct negotiations with the object of maximising the value of the assets offered for sale.
- IBC enjoins the liquidator to sell the immovable and movable assets of the CD in a manner that would result in maximisation of value, lead to a higher and quicker recovery for the stakeholders, cut short the delay, and afford a guaranteed timeline for completion of the process.
- IBC empowers the liquidator to take an independent decision for the sale of the assets of the CD in liquidation.
Based on the above observations and holding, the Supreme Court ruled in R.K. Industries (Unit-II) LLP that there was good reason for the liquidator to have halted the Second Swiss Challenge Process midstream and approached the NCLT armed with an offer of Rs. 675 crores received from Welspun, who had shown interest in the composite sale of the Dahej assets. The Supreme Court added that the Appellant was not able to demonstrate that the decision of the liquidator to discontinue the Second Swiss Challenge Process and go in for a private sale through direct negotiations with prospective bidders was a mala fide exercise.
The Supreme Court went on to state that from a reference to the Anchor Bid Document, it was apparent and explicit that even if the public auction had been completed and the respondent was the highest bidder, no right had accrued to him till the confirmation letter had been issued to him. The Court added that the decision taken by the liquidator cannot be treated as arbitrary, capricious, or unreasonable for interference by the Supreme Court and that it is a purely commercial decision centred on the best interest of the stakeholders. The stakeholders have unanimously endorsed the view of the liquidator, and thus it was not for this Court to undertake a further scrutiny of the desirability or the reasonableness of the said decision or substitute its own views for those of the liquidator.
As a result, the impugned NCLAT judgment was quashed and set aside to the extent that it modified the NCLT order and directed restraining of the private sale process. The Supreme Court also ruled that the liquidator should proceed with the private sale of the CD’s composite assets without further delay and conclude it as soon as possible. All the eligible bidders who have made Earnest Money Deposits would be entitled to participate in the negotiations to be conducted by the liquidator for privately selling the consolidated assets of the CD. The Supreme Court concluded that the liquidator must bring the process of private negotiations to a logical conclusion and close it within four weeks of its order.
The wide amplitude of the liquidator’s powers to determine the mode of sale has been fortified in R.K. Industries (Unit-II) LLP. This decision of the Supreme Court has also been followed recently in Sauria Corporation vs. Kohinoor Pulp & Paper Private Limited, wherein the NCLT stated that “it is the Liquidator who has to take a call on what mode of sale is in the best interest of maximization of the value of the assets. He may not be bound by the recommendations or advice of the Stakeholder’ Consultation Committee, however, in exercising the process of consultation, if something better transpires, he can take that into consideration.”
R.K. Industries (Unit-II) LLP’s decision has made it lucid that a liquidator is armed with powers to determine the mode, method and manner of sale of assets in liquidation and is not bound by the advice of stakeholders. Also, the Supreme Court is attempting to exercise minimal judicial intervention in matters pertaining to the IBC and has historically allowed the CoC and liquidators to exercise their commercial wisdom in matters relating to CIRP and liquidation of a CD. However, it is pertinent to note, the judiciary has also made it crystal clear that it will intervene in cases where the decision(s) of the CoC or the liquidator, among other things, are tainted with arbitrariness, capriciousness, or are unreasonable. R.K. Industries (Unit-II) LLP is yet another step to ensure that the process under the IBC is conducted efficiently and in a time-bound manner to ensure that the stakeholders get maximum value from assets under liquidation.
 2022 SCC OnLine SC 1124.
 Section 33 of IBC.
 Section 34(2) of IBC.
 Section 35 of IBC.
 Constituted under Regulation 31A of Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016.
 2022 SCC OnLine SC 1124.
 R.K. Industries (Unit-II) LLP vs. H.R. Commercials Private Limited and Others, 2022 SCC OnLine SC 1124.
 A Swiss Challenge is a method of bidding, often used in public projects, in which an interested party initiates a proposal for a contract or the bid for a project. The government then puts the details of the project out in the public and invites proposals from others interested in executing it. On the receipt of these bids, the original contractor gets an opportunity to match the best bid (Aarati Krishnan, All you wanted to know about…Swiss Challenge The Hindu BusinessLine (2018), https://www.thehindubusinessline.com/opinion/columns/slate/all-you-wanted-to-know-about-swiss-challenge/article24194034.ece (last visited Sep 19, 2022)).
 R.K. Industries (Unit-II) LLP vs. H.R. Commercials Private Limited and Others, 2022 SCC OnLine SC 1124, para 2 and 3.
 R.K. Industries (Unit-II) LLP vs. H.R. Commercials Private Limited and Others, 2022 SCC OnLine SC 1124.
 R.K. Industries (Unit-II) LLP vs. H.R. Commercials Private Limited and Others, 2022 SCC OnLine SC 1124, para 27.
 R.K. Industries (Unit-II) LLP vs. H.R. Commercials Private Limited and Others, 2022 SCC OnLine SC 1124, para 54.
 Order dated 10 December, 2021 in IA No. 273 of 2021.
 Order dated 16 August, 2021.
 Order dated August 31, 2022 in I.A (IB) No. 892/KB/2022 in C.P. (IB) No. 511/KB/2018, National Company Law Tribunal – Kolkata Bench-I.
The decision has made it lucid that a liquidator is armed with powers to determine the mode, method and manner of sale of assets in liquidation and is not bound by the advice of stakeholders. Also, the Supreme Court is attempting to exercise minimal judicial intervention in matters pertaining to the IBC and has historically allowed the CoC and liquidators to exercise their commercial wisdom in matters relating to CIRP and liquidation of a CD.