# In the matter of R Vijay Kumar & Anr Vs. Kasi Viswanathan & Anr CA(AT)(Insolvency) 340-2019

> NCLAT judgment dated 2019-04-05. Citation: TCN-2019-NCLAT-00695. The 'Resolution Process' for M/s. Gemini Communication Limited failed, leading the…

- **Court:** NCLAT
- **Order date:** 5 Apr 2019
- **Citation:** TCN-2019-NCLAT-00695
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/r-vijay-kumar-anr-vs-kasi-viswanathan-anr-ca-182b6ab1

## Summary

### Background

The 'Resolution Process' for M/s. Gemini Communication Limited failed, leading the ‘Resolution Professional' to file an application under Section 33 of the ‘Insolvency and Bankruptcy Code, 2016' before the Adjudicating Authority (National Company Law Tribunal), Single Bench, Chennai. The Adjudicating Authority passed an order of liquidation dated 26th February, 2019. The appellants, directors of the corporate debtor, submitted that the liquidation value of the property is Rs.3 Crores, while the ‘Promoters' are willing to pay Rs.30 Crores. This submission was not accepted due to non-entitlement under Section 29A of the I&B Code.

## Facts

The 'Resolution Process' for M/s. Gemini Communication Limited failed, leading to liquidation. The liquidation order was passed on February 26, 2019. The appellants, who are directors of the company, stated that the liquidation value is Rs.3 Crores, while the promoters are willing to pay Rs.30 Crores. The Appellate Tribunal referred to several Supreme Court judgments, including 'Swiss Ribbons Pvt. Ltd. & Anr. v. Union of India & Ors.' and 'Meghal Homes Pvt. Ltd.', to emphasize that liquidation should be the last resort. The Tribunal also referred to Section 230 of the Companies Act, 2013, which allows for compromise or arrangement with creditors and members, even during liquidation. The liquidator is directed to take steps to sell the business of the ‘Corporate

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## Issues and analysis

### Issue 1: Whether the Adjudicating Authority …

**Ratio:** Liquidation should be the last resort, and efforts should be made to revive the corporate

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**Reasoning:** The Appellate Tribunal referred to several Supreme Court judgments, including 'Swiss

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**Interpretation:** The court interprets the IBC to prioritize revival and resolution over

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**Application:** The ratio is applied to the present case by directing the liquidator to explore

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## Parties

- **Judges:** S.J. Mukhop…; A.I.S. C…
- **Appellants:** R. Vijay Kumar &…
- **Respondents:** M/s. Gemini…; Kasi Viswanathan…

## Timeline

- **2019-02-26 — Liquidation…**: The Adjudicating Authority passed…
- **2019-04-05 — Order…**: The Appellate Tribunal directed the…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 33 — Initiation of liquidation](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-33)

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