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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 ..... he CoC in the commercial wisdom has been approved by the Ld. Adjudicating Authority - this Appellate Tribunal in NAVEEN KUMAR JAIN VERSUS COMMITTEE OF CREDITORS OF K.D.K ENTERPRISES PVT. LTD. ORS. [ 2020 (11) TMI 957 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI ] wherein this Appellate Tribunal has held that replacement of IRP/RP also falls within the commercial wisdom of the CoC. The Appellant does not have vested any right to continue on the post of IRP / Resolution Professional - there is no illegality committed by the Ld. Adjudicating Authority while passing the impugned order. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 1040 of 2020 - - - Dated:- 6-8-2021 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Mr. Krishnendu Datta, Sr. Advocate with Mr. Nilotpal Shyam, Advocate. Mohd. Nazim Khan (In person) Ms. Babita Jain (CS) For the Respondent : Mr. Kunal Tandon and Ms. Richa Sandilya, Advocates for R-1 and 2. Ms. Deepika Bhugra Prasad, Mr. Dhananjaya Sud, Mr. Aditya Gauri, Mr. Gaurav Mitra and Ms. Shriya Raychaudhuri, Advocate for R-3. JUDGMENT Justice Anant Bijay S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Creditor including Respondent No. 2 - HDFC Bank Limited, J-12/21, J Block Rajouri Garden, New Delhi-110027 was put forth as per the Code, accordingly the Appellant put forward his name for appointment as the Resolution Professional of the Corporate Debtor. vi) However, the said resolution was rejected by the Respondent No. 2 being sole member of the Committee of Creditors having 100% voting shares. By Item No. 13 of the 1st meeting of Committee of Creditors held on 21st September, 2019, Minutes of the 1st meeting as Annexure-3 at page 60 to 79 of the Appeal Paper Book. vii) At page 66 of the Appeal Paper Book whereby confirmation of the Appointment of Interim Resolution Professional as Resolution Professional or to replace Interim Resolution Professional by another Resolution Professional as per Section 22(2) of the IBC. The Respondent No. 2 - HDFC Bank Limited being the sole member of Committee of Creditors proposed to replace Mohd. Nazim Khan, IRP (herein the Appellant) by Ashok Kumar Juneja as a Resolution Professional as per Section 22(2) of the IBC, 2016, without assigning any reason thereof. viii) Further it was resolved that pursuant to Section 22(2) of the IBC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 read with Regulation 40 of the Insolvency and Bankruptcy Board of India (for short IBBI) Regulation 2016 and all other applicable provisions of the IBC, 2016 the Interim Resolution Professional be and is hereby authorised to file an application to the Hon'ble NCLT, New Delhi to extend the period of Corporate Insolvency Resolution Process beyond period of 180 days for further 90 days. The copy of the Minutes of the 5th Meeting as Annexure-7 at page 264 to 275 of the Appeal Paper Book. From the perusal of the Minutes also indicate that HDFC Bank Limited by voting share of 80.64% in Agenda Item No. 8 was declared as disapproved by 80.64% voting in terms of Section 21(8) of the IBC, 2016. xiii) Further case is that one C.A. No. 1381 of 2020 in (IB)-889 (ND)/2019 was filed by HDFC Bank 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 ( at page 281 to 287 of the Appeal Paper Book Vol.-II) with prayer read as under: a) Allow the present application and exclude the total period of 114 days from the CIRP of the Corporate Debtor; b) In the alternative extend the CIRP by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made against (i) the Corporate Debtor whose assets and income is below a level, as may be notified by the Central Government or (ii) the Corporate Debtor with such class of creditors or (iii) such other category of corporate persons as may be notified by the Central Government. b) It was further submitted that the extension of the CIRP was approved by Ld. Adjudicating Authority under order dated 11.12.2020 (brought on Record by the Reply Affidavit filed by Respondent No.3 at page 235 to 236) cannot remedy the wrong committed by the Adjudicating Authority, therefore, the impugned order is fit to be set aside and appeal be allowed. Submissions on behalf of the Respondent No. 2. 5. The Learned Counsel for the Respondent No. 2 during the course of argument and his Reply Affidavit as well as Written Submissions have submitted that Appellant has no vested legal interest and he has no right to continue once the decision is taken by the Committee of Creditors to replace him. He has no locus standi to maintain this appeal. 6. It was further submitted that the reliance is place upon the Judgment passed by the Hon ble Supreme Court in K. Shashidhar Vs. Indian Overseas b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se facts of the instant case, it is covered by Judgments of Hon'ble Supreme Court and also this Appellate Tribunal (supra), there is no merit in the Appeal and it is fit to be dismissed. Submissions on behalf of the Respondent No. 3 9. The Learned Counsel for the Respondent No. 3 during the course of argument and his Reply Affidavit as well as Written Submissions have submitted that the Interim Resolution Professional duly convened the 4th Meeting of the Committee of Creditors dated 17.12.2019 whereby the CoC resolved by to appoint the Respondent No. 3 as the Resolution Professional of the Corporate Debtor which is annexed as Annexure-R/3-2 of the Reply Affidavit (at page no. 56). Wherein, Agenda Item No. 14 deals with captioned as To discuss and approve the Replacement of IRP to Resolution Professional . It was resolved that the present Interim Resolution Professional - Mr. Mohd. Nizam having IBBI Registration No. IBBI/IPA-002/IP-N00076/2017-18/10207 be and is hereby replaced with Ms. Deepika Bhugra Prasad having IBBI Registration No. IBBI/IPA-003/IP-N000110/2017-2018/11186 appointed as the Resolution Professional in terms of Section 22(2) of the IB Code, 2016. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Annexure -R/3-12 at page 160 to 185 of the Reply Affidavit. 16. It is further submitted that on 20.11.2020, I.A. No. 766/2020 was heard by the Hon'ble NCLT and thereby the Respondent No. 3 was appointed as the Resolution Professional of the Corporate Debtor which is at Annexure -R/3-13 (page 231 to 232 of the Reply Affidavit). 17. It is further submitted that the Hon'ble NCLT under order dated 11.12.2020 (at page 235 of the Reply Affidavit) excluded a period of 252 days i.e. from 04.02.2020 to 13.10.2020 and allowed the extension of 90 days with the direction to the Resolution professional to expedite the process for seeking Resolution Plan from the prospective Resolution Applicants for placing before the CoC for consideration and file a status report prior to the expiry of the extended period of time before this Authority. 18. It is further submitted that the Central Government, in the event of the outbreak of the Novel Coronavirus in the country, had imposed a nationwide lockdown from 25.03.2020. Therefore, the 90 days exclusion period in the said 252 days period provided by the Hon'ble NCLT was rendered inoperable. 19. It is further submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3 further submits that these facts and submissions in the instant case and the law settled by the Hon ble Supreme Court and also this Appellate Tribunal (supra), the Appeal sense merit, there is no merit in the Appeal and it is fit to be dismissed. FINDINGS 28. After going through the pleadings as also Written Submissions and heard the arguments advanced on behalf of the parties, we are of the considered view that the following facts are admitted in the case. i) The appellant on an Application under Section 9 of the IBC filed by one Mr. Sonal Anand which was allowed by the Ld. Adjudication Authority being CP No. (IB)-889 (ND)/2019 against M/s International Trenching Pvt. Ltd. under order dated 08.08.2019 appointed the Appellant as IRP of the Corporate Debtor. ii) The Committee of Creditors constituted the 1st meeting on 21.09.2019. iii) As no proposal with regard to appointment of Resolution Professional from any Financial Creditor including Respondent No. 2 - HDFC Bank Limited, was put forth as per the Code, accordingly the Appellant put forward his name for appointment as the Resolution Professional of the Corporate Debtor. iv) The said resolution was reje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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