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TMI Blog2020 (2) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble National Company Law Appellate Tribunal (NCLAT) in Company Appeal No. 308-309 of 2019. 2. It is submitted that vide order dated 18.02.2019, petition under Section 9 of the Code filed by an operational creditor M/s. Silvertoan Papers Limited for initiation of CIRP in the case of corporate debtor was admitted and by order dated 22.02.2019, the applicant-IRP Shri Rakesh Ahuja was appointed as Interim Resolution Professional (IRP). It is stated that public announcement in Form A in newspaper was made on 02.03.2019 and intimation was also sent to the suspended Board of the corporate debtor on 02.03.2019 and 04.03.2019 requesting them to cooperate with the applicant-IRP, but the Director/Promoters neither came forward to cooperate nor gave access to the books/records of the corporate debtor. 3. It is stated that the first CoC meeting was held on 24.03.2019 and that on 29.03.2019, the applicant-IRP received an e-mail from the Advocate of Shri Sumit Aggarwal, suspended director of the corporate debtor and upon perusal of the same, the applicant-IRP came to know that the said director has challenged the orders dated 18.02.2019 and 22.02.2019 of the Adjudicating Authority (AA) b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated and that in the meantime, the interim order dated 28.03.2019 passed by the Hon'ble NCLAT came and the deponent IRP has misinterpreted the above mentioned order as a stay order against the CIRP proceedings of the corporate debtor and even the members of the CoC interpreted the aforesaid interim order in the same manner and as such, on the oral request of the member of the CoC, the second CoC meeting was adjourned sine die till the proceedings before the Hon'ble NCLAT were pending. It is further deposed that after the dismissal of the appeal by the Hon'ble NCLAT on 17.09.2019, the second CoC meeting was held on 30.09.2019 where, it was again resolved that as per Section 22(2) of the Code, the present deponent be replaced with Mr. Vikas Garg as the RP. It is deposed that the CoC filed two applications CA No. 897/2019 and CA No. 942/2019 for the replacement of the IRP with Shri Vikas Kumar Garg as RP, but both the applications were withdrawn. 9. We have heard and carefully considered the arguments of the learned counsel for the applicant-IRP and have also perused the records. 10. The provisions of Section 12 of the Code are as follows: "12. (1) Subject to sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant-IRP's counsel, the matter was adjourned to 16.01.2020 and again on request, the matter was further adjourned to 07.02.2020. On 07.02.2020, the IRP was inter alia directed to file an affidavit explaining the delay. The compliance affidavit was taken on record on 10.02.2020 and order was reserved. Therefore, the delay after filing of the instant application is mainly attributable to the applicant-IRP. 12. With reference to the second proviso to Section 12(3) of the Code, the Hon'ble Supreme Court in para No. 79 of CoC of Essar Steel India Limited Vs. Satish Kumar Gupta & Ors. Civil Appeal No. 8766-67 of 2019 held as under:- "Thus, while leaving the provision otherwise intact, we strike down the word "mandatorily" as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigant's right to carry on business under Article 19(1) (g) of the Constitution. The effect of this declaration is that ordinarily the time taken in relation to the corporate resolution process of the corporate debtor must be completed within the outer limit of 330 days from the insolvency commencement date, includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussed above, the first order by the Hon'ble NCLAT is dated 28.03.2019. In the affidavit filed vide diary No. 1069, dated 10.02.2020, the applicant-IRP has deposed that he misinterpreted the order dated 28.03.2019 as a stay order against the CIRP proceedings of the corporate debtor and even the member of CoC interpreted the interim order in the same manner and as such, on the oral request of the member of the CoC, the second CoC meeting was adjourned sine die till the proceedings before the Hon'ble NCLAT was pending. The applicant-IRP has filed a copy of notice for holding CoC meeting on 31.03.2019. However, there is no evidence on record to show that there was any oral request of the member of the CoC for adjourning sine die the second CoC meeting till the proceedings before the Hon'ble NCLAT are pending. Even the member of the CoC giving the oral request has not been specified. 16. The orders of the Hon'ble NCLAT have not stayed the CIRP proceedings. Therefore, the claim of exclusion of the time period of 173 days due to lis pendens i.e. the pendency of the legal proceedings/appeal from 28.03.2019 to 17.09.2019 cannot be accepted. 17. The second CoC meeting w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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