9911796707
TMI Blog2021 (6) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... lication bearing I.A. No. 5173 of 2020 seeking extension of 60 days beyond the period of 270 days and further seeking exclusion of the period from 21.10.2020 to 09.11.2020 w.e.f. 21.10.2020 to 09.11.2020 i.e. 20 days being the time spent in listing of the CIRP extension application. That this Adjudicating Authority vide order dated 03.02.2021 held as under: "...12. Considering the submissions and averments made in the application and in view of second proviso of Section 12(3) of IBC, 2016, we hereby extend the CIR period for further 60 days beyond the period of 270 days but so far as the exclusion of period from 21.10.2020 to 09.11.2020 i.e. the period of 20 days spent in listing of the CIRP extension application and passing of the order by this Adjudicating Authority is concerned, in view of the second proviso of Section 12(3) of the IBC 2016, we are of the considered view that the exclusion of period on the ground of pendency of the legal proceedings is not permissible under the Law. Hence, we are not inclined to exclude the period of 20 days commencing from 21.10.2020 to 09.11.2020 as prayed by the Applicant in view of the second proviso of Section 12(3) of the IBC. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Adjudicating Authority to seek an extension of CIRP period by 60 days beyond the period of 330 days, which was coming to end on 19.02.2021. v. Further, the 10th meeting of CoC was convened on 15.02.2021 wherein, the Applicant apprised the members of CoC regarding the observations sent to the Prospective Resolution Applicant on 08.02.2021 and requested them to 'submit a modified Resolution Plan before the Applicant. The Prospective Resolution Applicant vide email dated 10.02.2021 requested the Applicant to grant an extension of 03 days i.e. till 13.02.2021. vi. Further, the Prospective Resolution Applicant submitted the modified Resolution Plan to the Applicant on 13.02.2021. vii. Further, the Applicant herein presented the modified Resolution Plan before the members of CoC wherein, the Applicant apprised the members of CoC that the Resolution Plan has some typographical errors; which has to be rectified by the Prospective Resolution Applicant. It is pertinent to mention that certain objections were also raised by the financial creditors with respect to the Resolution Plan and one of the objections raised by the representative of class of creditors is as follows:- "R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and the distribution as per Section 30(4) of the Code, which is pending for consideration before the CoC and it is only on the said application regarding the claim of Indian Overseas Bank being secured or unsecured, the CoC can come to a conscious decision about the feasibility, viability and distribution under the Resolution Plan at hand and accordingly, have instructed the Resolution Professional to seek extension of the CIRP period by further 60 days beyond 370 days. 3. Further, the Applicant has filed written submissions and submitted the following: i. That the Applicant herein approached the Hon'ble NCLAT against the order dated 03.02.2021 passed by this Adjudicating Authority and prayed as follows- "... Allow the present appeal and set aside the Impugned Order dated 03.02.2021 passed by the Hon'ble Adjudicating Authority in I.A. No. 5173 of 2020 preferred in C.P. (IB) No. 266(ND) of 2019 to the extent whereby exclusion of period consumed in legal proceedings before the Adjudicating Authority w.e.f. 21.10.2020 till 09.11.2020 & 12.01.2021 to 03.02.2021 has not been excluded for purposes of calculation of CIRP period..." ii. That the Hon Tale NCLAT vide judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the extended period of 40 days as extended by this Adjudicating Authority beyond 330 days came to an end on 19.02.2021. The Hon'ble NCLAT excluded the period of 40 days and the new date when the CIRP process has come to an end is 05.04.2021. The extension of 60 days is being sought only to consider the resolution plan pending before the Committee of Creditors. Keeping in view the consequence in absence i.e. liquidation, it would be in the best interest of all the stakeholders of the corporate debtor, if the extension of 60 days be granted as sought by the Applicant/RP and as approved by the Committee of Creditors in their 10th meeting held from 15.02.2021 to 17.02.2021. 4. We have heard the Ld. Counsel for the applicant and perused the averments made in the application as well as written submission filed on behalf of the applicant. We notice that the averments made in the written submissions are nothing but the reproduction/repetition of the facts mentioned in the application filed by the applicant. 5. While going through our order dated 03.02.2021, we further notice that we had directed the CoC to consider the Resolution Plan within the extended period of time but from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating Authority and on this ground alone, he has filed this application for extension of 60 days. 8. The aforesaid sequence of events shows that instead of complying with the directions of this Adjudicating Authority, the RP has suo moto decided to sit over the matter during the extended period. It is the settled principle of law, if there is no stay, the matter shall be proceeded in accordance with the provision of law, but this has been ignored by the Resolution Professional. 9. We further notice that during the course of hearing, the applicant has placed reliance upon several decisions, which had already been placed by the applicant in the course of hearing of the earlier IA/5173/2020. The applicant has also placed reliance upon the decision of Hon'ble Supreme Court in the case of Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta and Ors. in Civil Appeal No. 8766-67 of 2019. 10. At this juncture, we would like to refer to the decision of the Hon'ble Supreme Court in the case of Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta and Ors. in the Civil Appeal No. 8766-67 of 2019, on which the applicant's counsel ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings 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 90 days from the date of commencement of the Amending Act of 2019 is exceeded, there again a discretion can be exercised by the Adjudicating Authority and/or Appellate Tribunal to further extend time keeping the aforesaid parameters in mind. It is only in such exceptional cases that time can be extended, the general rule being that 330 days is the outer limit within which resolution of the stressed assets of the corporate debtor must take place beyond which the corporate debtor is to be driven into liquidation" 11. In view of the decision (Supra), we observe that the general rule being that the 330 days is the outer limit, including extensions and the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
