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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 ..... order was reserved. Therefore, the delay after filing of the instant application is mainly attributable to the applicant-IRP. In the present case, the insolvency commencement date (Section 5(12) of the Code) is 22.02.2019, when the applicant-IRP was appointed as IRP by the AA. The applicant-IRP is stated to have sent intimation to the suspended Board of the corporate debtor on 02.03.2019 and 04.03.2019 requesting them for cooperation, but the directors/promoters are stated to have neither come forward to cooperate nor given access to the books/records of the corporate debtor. Thereafter, the first CoC meeting is stated to be held on 24.03.2019 - 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. The period of 330 days for completion of CIRP has already expired and as on date, the complete process starting with appointment of valuers, preparation of Informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) before the Hon'ble NCLAT which had directed as under:- In the meantime, the Interim Resolution Professional will ensure that the company remains going concern and will take assistance of the (suspended) Board of Directors and the Officers/Directors/employees.. It is stated that vide order dated 30.04.2019, the Hon'ble NCLAT directed as under:- Until further order, the interim order dated 28th March, 2019 passed by this Appellate Tribunal, shall continue. The 'Interim Resolution Professional' or Adjudicating Authority will not take any steps or alienate or create third party interest on any of the movable or immovable property of the 'Corporate Debtor'. If any of the property of the 'Corporate Debtor' has been alienated in violation of section 43 r/w section 44 or section 45 r/w section 46 or section 66 of the Insolvency and Bankruptcy Code, 2016, the 'Interim Resolution Professional' or 'Liquidator' may take steps in accordance with law. 4. It is submitted that Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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-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 the committee of creditors by a vote of seventy-five per cent of the voting shares. (3) On receipt of an application under sub-section (2), if the Adjudicating Authority is satisfied that the subject matter of the case is such that corporate insolvency resolution process cannot be completed within one hundred and eighty days, it may by order extend the duration of such process beyond one hundred and eighty days by such further period as it thinks fit, but not exceeding ninety days: Provided that any extension of the period of corporate insolvency resolution proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... narily 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, including extensions and the time taken in legal proceedings. However, on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation and that the time taken in legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority and/or Appellate Tribunal, the delay or a large part thereof being attributable to the tardy process of the Adjudicating Authority and/or the Appellate Tribunal itself, it may be open in such cases for the Adjudicating Authority and/or Appellate Tribunal to extend time beyond 330 days. Likewise, even under the newly added proviso to Section 12, if by reason of all the aforesaid factors the grace period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was held on 30.09.2019, when the CoC proposed replacement of the IRP with Shri Vikas Garg, Insolvency Professional as RP. We note that the applications filed for appointment of Shri Vikas Garg as RP were withdrawn on 22.10.2019 and 05.11.2019. Section 16(5) of the Code states that the term of the IRP shall continue till the date of appointment of the RP under Section 22 of the Code. However, the applicant-IRP did not perform any work. Only the CoC was constituted and no further action was taken for preparing the Information Memorandum, appointing the Valuers, issuing invitation for Expression of Interest etc. The applicant-IRP has submitted that there was no cooperation from the Directors/Promoters, but only intimations sent on 02.03.2019 and 04.03.2019 i.e. soon after the commencement of the CIRP, have been brought on record. 18. We have discussed that the period of 330 days for completion of CIRP has already expired and as on date, the complete process starting with appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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