2022 (3) TMI 1416 - Tri - Insolvency and Bankruptcy

Seeking exclusion of period from 20.03.2020 till the date of presentation of the present application - seeking direction to Corporate Debtor to deposit Rs. 2,00,000/- and also to recall the order dated 06.07.2021 apart from restraining IBBI against the applicant pursuant to the order dated 06.07.2021 - HELD THAT - Reliance placed upon Ashish Chaturvedi Vs. Inox Leisure Ltd. and others 2020 (8) TMI 539 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI passed by Hon ble NCLAT, whereby the period of 370 days was excluded due to the reason that there was non communication of order on the part of the Registry regarding initiation of the CIRP - The present matter is also of the same nature, as there was a default on the Registry to communicate order of initiation of CIRP proceeding dated 20.03.2020 to the Ld. IRP. Taking into consideration the above said facts and the principle laid down by the Hon ble NCLAT in the matter of Ashish Chaturvedi Vs. Inox Leisure Ltd., in the present period stands excluded from 20.03.2020 till date, accordingly, Ld. IRP is directed to proceed further as per law from today onward. Simultaneously, the Operational Creditor is also directed to deposit the amount of Rs. 2,00,000/- as directed in the order dated 20.03.2020 immediately within three days, failing, which it should be treated as contemptuous in nature. Direction to IBBI - HELD THAT - The issue is still pending before the Hon ble NCLT, therefore, and no such order can be passed qua the prayer made by the Ld. Counsel for the IRP that IBBI may kindly be directed not to initiate any action against the IRP. The said prayer should be subject to the order passed by the Hon ble NCLT as a matter sub-judice. Application disposed off.

Summary

Issues:
1. Exclusion of period from 20.03.2020 till the date of application.
2. Direction to Corporate Debtor to deposit Rs. 2,00,000.
3. Recall of order dated 06.07.2021.
4. Restraining IBBI against the applicant.
5. Communication of order regarding initiation of CIRP proceedings.
6. Appointment of IRP and change of name.

Analysis:
1. The issue involved the exclusion of the period from 20.03.2020 till the date of the application. The Tribunal noted that the order initiating CIRP proceedings against the corporate debtor was not communicated promptly to the IRP. The delay in communication was attributed to the Registry's failure. Relying on the principle established in a previous case, the Tribunal excluded the period from 20.03.2020 till the present date, directing the IRP to proceed as per the law from that day onwards.

2. Another issue was the direction for the Corporate Debtor to deposit Rs. 2,00,000. The Tribunal highlighted that the operational creditor failed to deposit the required fees as instructed. The Tribunal directed the operational creditor to deposit the specified amount within three days, emphasizing that failure to comply would be considered contemptuous.

3. The next issue was the recall of the order dated 06.07.2021. The Tribunal did not provide detailed reasoning on this issue in the judgment.

4. Regarding the request to restrain IBBI against the applicant, the Tribunal stated that the matter was pending before the NCLT. Therefore, no immediate order could be passed to direct IBBI not to take action against the IRP. The Tribunal clarified that this issue would be subject to the final decision of the NCLT.

5. The issue of communication of the order regarding the initiation of CIRP proceedings was crucial. The Tribunal acknowledged that the delay in communication was due to the Registry's failure to notify the IRP promptly. This communication lapse was considered a significant factor in the case.

6. Lastly, the matter of the appointment of the IRP and the change of name was discussed. The Tribunal noted that an application was previously filed for the change of name of the IRP. However, during the proceedings, it was revealed that the Corporate Debtor had no objection to the continuation of the initial IRP. The Tribunal referred to a relevant citation to support its decision in this matter.

In conclusion, the Tribunal disposed of the present application, emphasizing the exclusion of the period from 20.03.2020 till the date of the application, directing the IRP to proceed accordingly. The Corporate Debtor was instructed to deposit the specified amount promptly, and the issue regarding IBBI's action against the applicant was deemed sub judice pending the NCLT's decision.