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TMI Blog2020 (8) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. The Operational Creditor along with counsel is present. The Resolution Professional prayed for exclusion of the period of time from the date of the initial order dated 12.12.2018 till date on the ground that the order has not been communicated to him by the concerned and he came to know about the order very late due to which he has filed the present Application. It is further submitted that the Operational Creditor be directed to deposit an amount of Rs. Two Lakhs with the Applicant/IRP. As seen from order dated 05.01.2018, it has been provided under Para 11 of the said order that a copy of the order shall be communicated to the IRP as well as to the Corporate Debtor by the Registry which has not been don due to inadvertness. Therefore, the Application is allowed. The period of 370 days is hereby excluded from the maximum period of CIR Process by extending 180 days with effect from the date of passing of this order with the direction to the Operational Creditor to deposit of Rs. 2.50 lakhs with the IRP within a week's time. Therefore, within three days the IRP will make public announcement." And resultantly disposed of the Application. 3. The Learned Counsel for the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Creditors' etc. 9. The Learned Counsel for the Appellant refers to the judgment of this Tribunal in CA(AT) (Insolvency) No. 185 of 2018 in Quinn Logistics India Pvt. Ltd v.Mack Soft Tech Pvt. Ltd and ors., dated 08.05.2018, wherein at para 6 to 11 it is observed as under: "Similar question fell for consideration before this Appellate Tribunal in "Quantum Limited (Corporate Debtor) vs. Indus Finance Corporation Limited - Company Appeal (AT) (Insolvency) No. 35of 2018" wherein this Appellate Tribunal observed as follows: "3. Section 12 prescribes the 'time limit for completion of insolvency resolution process', which reads as follows: 12. Time-limit for completion of insolvency resolution process - (1) Subject to sub-section (2), the corporate insolvency resolution process shall be completed within a period of one hundred and eighty days from the date of admission of the application to initiate such process. (2) The resolution professional shall file an application to the Adjudicating Authority to extend the period of the corporate insolvency resolution process beyond one hundred and eighty days, if instructed to do so by a resolution passed at a meeting of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e counted for any purpose and is to be excluded for all purpose. Now the Adjudicating Authority will proceed in accordance with law." 7. In "Amar Remedies Ltd. (Through the Resolution Professional) vs. IDBI Bank Ltd. &Ors. - Company appeal (AT) (Insolvency) No. 59 of 2018" taking into consideration the justification of extension of the period, this Appellate Tribunal by judgment dated 5th March, 2018 extended the period for resolution process for another 90 days from the date of the order passed by the Appellate Tribunal. There are other cases wherein similar orders were passed, namely "M/s. Shilpi Cable Technologies vs. Macquarie Bank Ltd. - I.A. No. 30 of 2018 in Company Appeal (AT) (Insolvency) No. 101 of 2017". Therein taking into consideration the fact that the Hon'ble Supreme Court has set aside the order passed by this Appellate Tribunal and restored the corporate insolvency resolution process as was initiated by the Adjudicating Authority, passed the following order:- 4. We have heard learned counsel appearing on behalf of the 'Insolvency Resolution Professional' and learned counsel appearing on behalf of the Respondent Macquarie Bank Limited ('Operational Creditor') and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating Authority or the Appellate Tribunal or the Hon'ble Supreme Court and finally pass order enabling the 'Resolution Professional' to complete the corporate insolvency resolution process. (v) If the corporate insolvency resolution process is set aside by the Appellate Tribunal or order of the Appellate Tribunal is reversed by the Hon'ble Supreme Court and corporate insolvency resolution process is restored. (vi) Any other circumstances which justifies exclusion of certain period. However, after exclusion of the period, if further period is allowed the total number of days cannot exceed 270 days which is the maximum time limit prescribed under the Code. 11. In the present case, as the corporate insolvency resolution process remained stayed for 166 days due to the interim order passed by the Adjudicating Authority on 15th September, 2017 which was vacated on 28th February, 2018, we hold that the 'Committee of Creditors' / 'Resolution Professional' rightly requested the Adjudicating Authority to exclude the period of 166 days for the purpose of counting the total period of 270 days. Taking into consideration the stand taken by the parties and the stage of corporate insolv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this section to extend the time of maximum of 90 days beyond the expiry of 180 days for completion of CIRP, if CIRP has not commenced by the 'Insolvency Resolution Professional' duly appointed by the 'Adjudicating Authority' as per its order dated 05.12.2018. 14. Per contra, it is the specific case of the 2nd Respondent/IRP is that neither the Registry of the 'Adjudicating Authority' nor any other person had informed the IRP about passing of the order dated 05.12.2018 or commencement of 'CIRP' within the time period as mentioned in the order and hence he was unaware of the passing of the aforesaid order and could not start functioning as IRP of Corporate Debtor. 15. The 2nd Respondent/IRP in his 'Application before the 'Adjudicating Authority' had proceeded to mention that on 12.11.2019 he has received an email from the 'Operational Creditor' whereby he was informed that he was appointed as IRP by order dated 05.12.2018 and that the Operational Creditor further informed him that they wanted to revive the 'Insolvency Proceedings' against the 'Corporate Debtor' and required his willingness and eligibility to act as 'IRP', and that he confirmed his eligibility and willingness to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of the ingredients of Section 25(2) (b) of the I&B Code. 19. The 'Insolvency Resolution Professional being a creature of the I&B Code is certainly entitled to project an application before an 'Adjudicating Authority' relating to the hardships/difficulties, he faces/faced during the 'Resolution Process'. 20. A glance of the impugned order dated 10.12.2019 indicates that the order of the 'Adjudicating Authority' dated 05.12.2018 was not communicated to the IRP as well as to the 'Corporate Debtor by the office of the Adjudicating Authority (NCLT III New Delhi), due to inadvertence. 21. In this connection, this Tribunal relatively pointed out that 'Maxim', 'Actus', 'Curiae', 'Neminem', 'Gravabit' i.e. Act of the Court shall harm no Home-Sapien. Owing to an inadvertent omission on the part of the 'Registry' of the 'Adjudicating Authority', the order dated 05.01.2018 of the said Authority was not communicated to the 'IRP' as well as to the Corporate Debtor. In this backdrop the 'Adjudicating Authority' (NCLT, New Delhi Bench -III) had rightly allowed the Application i.e. CA- 862/C-III/ND/2019 filed by the 2nd Respondent by passing the impugned order dated 10.12.2019, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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