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TMI Blog2019 (6) TMI 1457X X X X Extracts X X X X X X X X Extracts X X X X ..... ors, nothing is coming on record as to what necessitated the IRP to call for second opinion of the Advocate. The Court at this stage would not like to go elaborately into the issue when the application of the C/SCA/10629/2019 ORDER petitioner under Section 60 is filed. In the instant case, on one hand, application is filed and pending whereas on the other hand, if the COC is permitted to proceed further, it may amount to frustrating the legitimate right of a creditor, more so in the instant case where the IRP has itself in its report has treated Time Sharing Members as financial creditors and gave voting share. Thereafter, without giving opportunity of hearing to the petitioner, cannot suo motu treat them as corporate creditors to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C which is scheduled on 21.06.2019. The case in short of the petitioner is that the petitioner who is Time Sharing Member of the corporate debtor was initially treated as a class and financial creditor with total claim of ₹ 82,28,68,000/- with voting share at 5.90% by the IPR in its first report to COC dated 29.05.2019. Thereafter, Time Sharing Members as a class were not considered as financial creditors but were categorized as corporate creditors, thereby losing their right to have voting share. This was done without bringing it to the notice of the petitioner and /or any Time Sharing Member. 3. With this background, this Court passed order on 20.06.2019 staying meeting of COC scheduled on 21.06.2019. 4. Learned Advocate for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e line. During the course of submissions, learned Advocate for the respondent produced for perusal of this Court minutes of the first meeting of COC held on 29.05.2019. 5.1 It is submitted that the petitioner who is a Time Sharing Member cannot be equated with financial creditors as he would not fall in the definition and therefore, the petition itself requires to be rejected on merits. 6. Having considered the rival submissions and having perused documents on record, including minutes of the meeting dated 29.05.2019 produced today, it appears that the matter is still at large before the NCLT. The IRP report to COC considers the petitioner as Time Sharing Member as a separate class and classified as financial creditors for amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered from each other and also opinion given by first advocate. 7. When the IRP has considered petitioner as financial creditor, it was obligatory for the IRP to invite representation of the Time Sharing Members to the first meeting of COC, which from the minutes does not appear to have been done and with one opinion of the Advocate to consider Time Sharing Members as financial creditors, nothing is coming on record as to what necessitated the IRP to call for second opinion of the Advocate. The Court at this stage would not like to go elaborately into the issue when the application of the C/SCA/10629/2019 ORDER petitioner under Section 60 is filed. The prayers in such application inter alia are as under:- B. Give opportunity of heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Adjudicating Authority, this determination can be challenged before the Appellate Authority under Section 61, and may further be challenged before the Supreme Court under Section 62, if there is a question of law arising out of such order, within the time specified in Section 62. Section 64 also makes it clear that the timelines that are to be adhered to by the NCLT and NCALT are of great importance, and that reasons must be recorded by either the NCLT or NCALT if the matter is not disposed of within the time limit specified. Section 60(5), when it speaks of the NCLT having jurisdiction to entertain or dispose of any application or proceeding by or against the corporate debtor or corporate person, does not invest the NCLT with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s petitioner is given a fair chance to get his grievance adjudicated by the NCLT. 10. With a view to meet with time line as prescribed by the Apex Court and at the same time, balance rights of the petitioner, it is appropriate to direct the petitioner to complete formalities in connection with application under Section 60 of the Code being CP No.(IB) 127/NCLT/AHM/2017 on or before 29.06.2019. The NCLT thereafter to consider and finally decide the application of the petitioner under Section 60 of the Code on or before 09.07.2019. 11. With the aforesaid directions, the petition stands disposed of. 12. In view of the order passed in the main matter, Civil application does nor survive. Disposed of accordingly. Direct service permit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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