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TMI Blog2021 (8) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 20.11.2020 passed by the Adjudicating Authority (National Company Law Tribunal, Court No. III), New Delhi in CA-766/2020 in IB-889(ND)/2019 whereby the Ld. Adjudicating Authority has passed the following order is as under: "Counsel for the CoC is present. It is submitted that the CoC on 26th October 2020 has resolve to replace the IRP Mr. Nazim Khan with Ms. Deepika Prasad. The resolution passed for replacing the IRP has been passed with 87% voting share. Therefore, Ms. Deepika Prasad is appointed as RP and Mr. Nazim Khan is hereby relief from the assignment with the direction to hand over the record and assets of CD within 10 working days to Ms. Deepika Prasad against proper receipts. The Proxy Counsel for Mr. Nazim Khan is present but has no information about the detail of remuneration and out of pocket expenses, which is to be paid to the IRP. Therefore, the CoC is directed to work out the remuneration and other expenses, if any, and pay the same to the IRP viz., Mr. Nazim Khan within 2 weeks. In terms of the above the IA is allowed." 2. The facts giving rise to the instant Appeal is as under: i) That one M/s International Trenching Pvt. Ltd.- Corporate Debtor w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Further C.A. 50/C-V/ND/2019, C.A. 80/C-V/ND/2019 in (IB) 889 (ND)/2019 was filed under Section 22(2) of the IBC, 2016 on behalf of HDFC Bank - Respondent No. 2 who is the sole member of the Committee of Creditors with 100% voting share made following prayers which read hereunder: "a) Allow the present application and appoint Mr. Ashok Kumar Juneja as the Resolution Professional. Further in the interest of justice and fair investigation to not to replace the present IRP. b) Pass further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case." x) The Ld. Adjudicating Authority under order dated 27.11.2019 passed the following order "Accordingly, it is, therefore, ordered that the prayer to confirm the appointment of Mr. Ashok Kumar Juneja as RP is concerned, is rejected. Further, with liberty to the HDFC Bank to make a similar prayer, if the appointment of Mr. Ashok Kumar Juneja as RP is confirmed by the COC in accordance with the provisions contained under Section 22(2) of the IBC" at page 79 of the Appeal Paper Book. xi) That pursuant to order dated 27.11.2019 passed by Ld. Adjudicating Authority, the Appellant conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the present case." xiv) The Ld. Adjudicating Authority under order dated 28.09.2020 which is at page 291 (Vol.- II) of the Appeal Paper Book passed the following orders as under: " I.A. No. 1381/2020 filed in IB-889/ND/2019: The Counsel for HDFC Bank is present. The Bank is one of the constituents of the COC and prayed for extension of the CIR Process. At this stage, the IRP along with the Counsel caused appearance and submitted that on an earlier point of time, the HDFC Bank had declined to seek the extension of the CIR Process. In the circumstances, it is deemed appropriate to direct the IRP to send short notice to all the members of the COC for convening the meeting for deliberating on the issue with regard to extension of the CIR Process. The meeting shall be convened on 13th October, 2020 through visual hearing and the report shall be filed on 16th October, 2020. List on 16.10.2020." 3. Based on these facts, the Appellant has challenged the impugned order dated 20.11.2020 passed by the Adjudicating Authority (National Company Law Tribunal, Court No. III), New Delhi in CA-766/2020 in IB-889(ND)/2019 at page 44 of the Appeal Paper Book. Submissions on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislature, consciously, has not provided any ground to challenge the "Commercial wisdom" of the individual financial creditors or their collective decision before the Adjudicating Authority" as such decision taken by the Committee of Creditors is not open for any judicial intervention or adjudication by the Adjudicating Authority. 7. It is further submitted that this Appellate Tribunal has also held in Company Appeal (AT) (Insolvency) No. 882 of 2020 (Naveen Kumar Jain Vs. Committee of Creditors of K.D.K. Enterprises Pvt. Ltd. & Ors) wherein this Appellate Tribunal has held as follows: " After hearing learned counsel for the Appellant, we find that the Appellant who had been appointed as Interim Resolution Professional, had approached the Adjudicating Authority (National Company Law Tribunal), Court-V, New Delhi, under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) for seeking payment of fee and staying of his replacement. The prayer was declined on the ground that the wisdom of Committee of Creditors is beyond the pale of challenge. In the instant case, the sole Financial Creditor (Indian Bank) has voted to replace the Resolution Profession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-judice before the Hon'ble NCLT. 11. It is further submitted that the 180 days of the CIRP period expired on 04.02.2020 and the HDFC Bank (herein Respondent No. 2) had filed an Application (I.A. No. 1381/2020) on 17.02.2020 for extension of the CIRP period before the Hon'ble NCLT. However, due to the lockdown in the country, the same was listed for the very first time on 28.09.2020 (at page 124 of the Reply Affidavit) whereby the Hon'ble NCLT directed the Appellant to conduct a CoC Meeting on 13.10.2020 to deliberate on the issue of extension of the CIRP period and replacement of the IRP of the Corporate Debtor. 12. It is further submitted that the Appellant illegally wrote to the Respondent No. 2 on 13.10.2020 (the day of the meeting) to obtain a fresh/revised written consent from the Respondent No. 3 citing vague reasons. However, the same was submitted to the Appellant at 2PM on 13.10.2020. 13. It is further submitted that subsequently, the Appellant convened a Committee of Creditors Meeting on 13.10.2020 whereby a Resolution was passed by the members of the CoC with respect to the extension in the CIRP period. However, discussion on the agenda for the appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expire on 12.01.2021. Pursuant to the same, the Respondent No. 3 filed an Application bearing I.A. No. 465/2021 seeking extension by a further period of 60 days in the CIRP period. 21. It is further submitted that the aforesaid Application was allowed by the Hon'ble NCLT under order dated 12.02.2021 thereby extending the CIRP period by a further period of 60 days w.e.f. 12.01.2021. In lieu of the same, the CIRP period expired on 12.03.2021. 22. It is further submitted that the Respondent No. 3 had received EOIs from 2 Prospective Resolution Applicants who further submitted their respective Resolution Plans on or before the last date of submission of EOI i.e. 26.02.2021 to the Respondent No. 3. 23. It is further submitted that the aforesaid Prospective Resolution Applicants submitted their Revised Resolution Plans on 11.03.2021 to the Respondent No. 3 whereby in the 12th Meeting of the CoC, the said Resolution Plans were thereby rejected by the members of the CoC. 24. It is further submitted that Respondent No. 3 convened the 13th Meeting of the CoC dated 12.03.2021 whereby it was resolved to initiate the Liquidation of the Corporate Debtor. Pursuant to the same, the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected the prayer for confirmation of appointment of Mr. Ashok Kumar Juneja as RP and given liberty to HDFC Bank - Respondent No. 2 to make a similar prayer, if the appointment of Mr. Ashok Kumar Juneja as RP is confirmed by the CoC under Section 22(2) of the IBC (at page 79 of the Appeal Paper Book) . vi) The 4th CoC meeting held on 17.12.2019 which was presided by Mohd. Nazim Khan (the Appellant) and agenda Item No. 14 it was resolved that Ashok Kumar Juneja be substituted with Ms. Deepika Bhugra Prasad as new RP because Mr. Ashok Kumar Juneja has withdrawn his consent (at page 108 to 121 of the Appeal Paper Book). vii) That one C.A. No. 1381 of 2020 in (IB)-889(ND)/2019 was filed by HDFC Bank - Respondent No. 2 under Section 60(5) & Section 12 of the IBC, 2016 read with Regulation 40 of the IBBI for exclusion of period or in the alternative extension of CIRP. viii) On 11.12.2020 in I.A. No. 766/2020, the Respondent No. 3 was appointed as the Resolution Professional of the Corporate Debtor (at Annexure-R/3-13, page 231 to 232 of the Reply Affidavit). ix) The NCLT under order dated 11.12.2020 (at page 235 of the Reply Affidavit of Respondent No. 3) excluded a period of 252 da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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