9911796707
TMI Blog2021 (7) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... Court made available, there are no reason to entertain this IA - matter remanded back the matter to this Bench to pass an order afresh after providing an opportunity to the opposite party - the CIRP has been set aside but the Application filed by the FC before this Bench under Section 7 of the IBC is alive and not dismissed. - Hon ble Shri H. V. Subba Rao , Member ( J ) And Hon ble Shri Prasanta Kumar Mohanty , Member ( T ) MR. MUKESH SHARMA ADVOCATE PETITIONER K. K. NANDI ADVOCATE RESPONDENT CONFERENCE ORDER [ Per : Mr. H. V. Subba Rao , Member ( J ) ] This IA is filed by M/s. Shree Sai Prakash Alloys Pvt. Ltd. Pvt. Ltd., the Corporate Debtor in compliance with the order of the Hon ble NCALT dated 18.06.2020 against Punjab National Bank, the Respondent herein, seeks the following reliefs: (a) To admit this Interlocutory Application; (b) To set aside impugned Order dated 23.08.2019 passed by this Bench; (c) To pass an order afresh, after providing an opportunity to the party in the light of the directions given in the body of the judgment dated 18.06.2020 passed by the Hon ble NCLAT, at New Delhi; (d) And/or any other order/orders as Your Lordship may deem fit and proper in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bank but at the last moment, the Bank refused to accept the same during pendency of the Applications before the Adjudicating Authority. The Counsel states that the Appellants are still ready to settle the matters with the bank. Post the case for admission (after Notice) on 11th November, 2019. Meanwhile, IRP will not constitute COC, till next date. The IRP/ Resolution Professional will ensure that the company remains going concern and the manufacturing and production of the company do not suffer; payment of wages to the employees / workmen are made on time and if any material is supplied during Corporate Resolution Process , the payment must be paid to the supplier / creditor. The Insolvency Resolution Professional will also take aid of (suspended) Board of Directors, paid Directors and employees. The person who is authorised to sign the bank cheques may issue cheques only after authorization of the Interim Resolution Professional. The Banks having accounts of the Corporate Debtor will also cooperate with the Insolvency Resolution Professional to ensure compliance of this order. 5. Part of the Final Order dated 18.06.2020 of Hon ble NCLAT is reproduced below: 18. In the Impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after providing an opportunity to the party in the light of the directions given in the order of the NCLAT dated 18.06.2020. 4. The learned counsel further submits that presently the matter is pending before the Hon ble Supreme Court but no date for hearing has been fixed as yet. Therefore, he prays for an adjournment till 13.11.2020. 5. Prayer allowed. As requested matter is adjourned to 13.11.2020. The Respondent/FC is advised to submit a copy of the judgment of the Hon ble Supreme Court passed, if any, in between, in this regard. Copy of this order is to be sent to the learned counsel for the IA/CD. 5. In spite of the clear order of this Bench to the Petitioner (FC) and the Respondent (CD), they have not produced copy of any order of the Hon ble Supreme Court passed on the Writ filed by the Petitioner (FC) against the order of the Hon ble NCLAT dated 18.06.2020. 6. Section 7 (4) of IBC reads as under (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has reportedly handed over the Management back to the CD, the details of expenses of ₹ 17,81,160/- (Rupees Seventeen lakh eighty one thousand one hundred sixty) as CIRP cost to be reimbursed, enclosing the copy of the agreements between him and the Petitioner FC and the Respondent CD, if any, towards his fees and revised Form H Compliance Report before the Registry. This Affidavit / clarification is to be submitted by 03.03.2021 . 8. In compliance with the order of this Bench, the IRP has filed the Affidavit dated 03.03.2021. Relevant part of the same is reproduced below: 5. That the Applicant was appointed as Interim Resolution Professional vide Order dated 23.08.2019 and the Applicant had received the copy of the order dated 23.08.2019 on 26.08.2019. Thereafter, on 27.08.2019 sent intimation letter to the Respondent no.1 and 2 conveying about the order of the initiation of the CIRP process. The Applicant had also sought the details from the management of the Corporate Debtor regularly and government agencies so that intimation can also be sent to them. 8. That the suspended Director of the Corporate Debtor had filed an Appeal before the Hon ble NCLAT challenging the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 18.06.2020 was brought in the notice of the Applicant by the Respondent No.2 on 20.06.2020 vide email and letter requesting to the Applicant for carrying out the necessary formalities towards handing over the control of all three group companies. A copy of the email dated 20.06.2020 sent by the erstwhile management to the Applicant is annexed herewith and marked as Annexure A9. 22. That after coming to the notice of the Hon ble NCLAT dated 18.06.2020 the Applicant had stopped controlling the affairs of the Corporate Debtors. The Hon ble NCLAT had remanded back the matter to this Hon ble Tribunal for adjudicating section 7 Application afresh and for passing of appropriate orders in terms of directions given. The relevant excerpts of the order passed by the Hon ble NCLAT are reproduced below for the reference of this Hon ble Tribunal. 28. In the circumstances as stated above this Tribunal allows the instant Appeal setting aside the impugned order and matter is remanded back to the Adjudicating Authority to pass an order afresh, after providing an opportunity to the opposite party in the light of the directions in the body of the judgment. However, if is also clear that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved to the Applicant. The Applicant is not aware about the proceedings / development in the Appeal filed before the Hon ble Supreme Court also till the date of filing of the present Affidavit no copy of any order was handed over to the Applicant by the contesting parties. Even the Applicant was not impleaded as a necessary party neither by the Respondent No.1 in the Appeal filed before the Hon ble Supreme Court nor by the Respondent No.3. To the best knowledge of the Applicant the Hon ble Supreme Court had not stayed the order dated 18.06.2020 passed by the Hon ble NCLAT. Therefore, the order of Hon ble NCLAT is binding on the Applicant till the passing of any appropriate order. 28. That the Applicant in the Application under prayer clause (ii) had sought the relief for the dismissal of the Corporate Insolvency Resolution Process and not for the dismissal of the Company Petition (IB) filed by the Financial creditor under section 7 of the Code, 2016. The prayer sought was solely on the basis of the order passed by the Hon ble NCLAT and have no other motive to seek such prayer. The Applicant had bona fide controlled the affairs of the Corporate debtors. Since the Applicant is an of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove. 6. That the financial creditor have not made any statements and averments in so far as the reliefs sought for by the corporate debtor in the application under Rule 11 of the NCLT Rules and craves leave of this Hon ble Tribunal to file additional reply / addendum if so required before this Hon ble Tribunal. 7. The financial creditor has filed this affidavit-in-reply to bring on record of this Hon ble Tribunal the pendency of Civil Appeal mentioned above before the Hon ble Supreme Court. 10. The judgement of the Hon ble Supreme Court dated 10.03.2021 is reproduced below: Upon hearing the counsel the court made the following O R D E R List on 26.03.2021. 11. It is observed during the course of proceedings that the IRP had handed over the Management of the Company to the erstwhile Management on receipt of the order of the Hon ble NCLAT dated 18.06.2020 from the Respondent No.2 and he has stopped controlling the affairs of the all three Corporate Debtors from 20.06.2020. He has also submitted that he has not entered into any agreement with the Applicant/FC with regard to his fees as IRP. 12. He has also submitted that since the order of admission of the Application was set aside, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 days have since passed from the date of filing of the Petitions. As per Section 7 (A) of the IBC, an Application is required to be admitted or rejected within fourteen days of the receipt of the application. Hon ble Supreme Court has held in the matter of COC of Essar Steel India Ltd. Vs Satish Kumar Gupta [Civil Appeal No.8766 67/2019] that the CIRP must ordinarily be completed within the time limit of 330 days from the Insolvency Commencement Date unless extended by the Court on sufficient cause . 330 days is for CIRP. More than 1000 days have already passed even before the commencement of the actual CIRP in the process of OTS, acceptance/nonacceptance of OTS, Negotiations/further Negotiations. Commitments and failure of commitments, filing of IAs after IAs, Cases/Appeals before the Hon ble NCLAT, Hon ble High Court and Hon ble Supreme Court. 17. Objectives of the IBC are very clear i.e. Insolvency Resolution of Corporate Persons /Stressed Assets in a time bound manner for maximisation of value of Assets of such persons, promotion of entrepreneurship, availability of credit and balance of interest of all stake holders. Delay in resolution of these stressed Assets costs heavily ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
