2021 (11) TMI 903 - Tri - Insolvency and Bankruptcy

Seeking necessary instructions to the RP to consider the claim without having any regard to the delay - Resolution plan not approved - HELD THAT - When we read the old and new regulation 12(2) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 then it can be said that prior to the amendment in regulation 12(2), a claim is required to be filed before the IRP or the RP as the case may be, till the approval of a resolution plan by the committee and that is the reason earlier the Co- ordinate Bench has given directions to the RP to consider the claim in some cases but after the amendment till the approval of the resolution plan by the committee was substituted by on or before the 90th day of the insolvency commencement date. Herein the case in hand, as we notice that the CIRP was initiated on January 27, 2020 and thereafter, the public announcement was made and within the prescribed period no claim was placed by the applicant. We further notice that, in view of the amended regulation 12(2) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations 2016, the claim was not filed within the 90 days of the insolvency commencement date. Due to pandemic the lockdown was imposed by the Government the claim could not be submitted within time. Admittedly, in another matters, we exclude the period of lockdown which was imposed on March 25, 2020 till May 31, 2020, i. e., 68 days, if we exclude this period of lockdown while calculating the period of 90th day from the CIRP period even then the claim of the applicant is delayed because it was submitted on December 23, 2020. In view of regulation 12(2), the prayer of the applicant is not liable to be accepted - Application dismissed.

Summary

Issues:
1. Application filed under section 60 of the Insolvency and Bankruptcy Code, 2016 seeking various reliefs.
2. Delay in filing the claim by the applicant.
3. Interpretation of regulation 12(2) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
4. Impact of lockdown due to the pandemic on the filing timeline.
5. Maintainability of the application and rejection by the RP.

Analysis:
1. The applicant sought relief under section 60 of the Insolvency and Bankruptcy Code, 2016, requesting the tribunal to allow the application, instruct the RP to consider the claim without delay, admit the claim, and halt the resolution plan process until the claim is admitted. The applicant cited missed publication, lockdown impact, and lack of response from the corporate debtor as reasons for the delay in filing the claim.

2. The RP contended that the application was filed to mislead the tribunal and delay proceedings. The RP rejected the claim citing delay and stated that the application was not maintainable under section 60 of the IBC due to the delay in filing the claim after the specified deadline of February 12, 2020.

3. The tribunal analyzed regulation 12(2) of the IBBI Regulations, noting the amendment that changed the timeline for filing claims. The tribunal observed that the claim was not submitted within 90 days of the insolvency commencement date, as required by the amended regulation. The tribunal differentiated between the old and new provisions and concluded that the claim was not filed within the stipulated timeline.

4. The applicant argued that the regulation 12(2) is directory, not mandatory, based on previous tribunal decisions. However, the tribunal found that the previous orders did not discuss the amended provision of regulation 12(2) and considered those orders as per incuriam. The tribunal referenced a specific case where the amended provision was discussed, supporting the mandatory nature of the regulation.

5. Despite the applicant's argument regarding the pandemic-induced lockdown affecting the filing timeline, the tribunal calculated the claim submission date and found it delayed even after excluding the lockdown period. Consequently, the tribunal rejected the applicant's prayer, stating that the claim was not acceptable under regulation 12(2) and dismissed the application.

In conclusion, the tribunal dismissed the application, emphasizing the importance of adhering to the timelines set by the regulations and rejecting the claim due to the delay in submission, as per the amended provision of regulation 12(2).