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TMI Blog2021 (9) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... onal grounds in view of the impugned order which subsequent to the filing of Appeal became available. The Application is allowed. 3. The Appellant has filed Amended Memorandum of Appeal vide Dy. No. 29191. The same is taken on record and will be treated as the Amended Memorandum of Appeal. 4. Heard Counsel for the parties. Perused Impugned Order. Considering the disputes being raised, issue notice. Counsel for the Resolution Professional dispenses with service of formal notice. 5. Learned Counsel for the Appellant seeks interim reliefs as claimed in I.A. No. 1557/2021. The Learned Counsel submits that the impugned order deserves to be stayed as the Committee of Creditors may proceed to take a decision with regard to liquidation and the Appellant who claims to be Financial Creditor will be deprived of its right to participate in the CIRP. 6. Counsel for the Appellant submits that the Resolution Professional rejected the claim of the Appellant to be a Financial Creditor and the Appellant had filed I.A. No. 2129 of 2020 before the Adjudicating Authority. Reference is made to the impugned order Annexure A-1 (Page 63) of the Amended Memorandum of Appeal, where the Appellant had pray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim was not admitted by the Resolution Professional (RP) giving detailed reasons for the same. Aggrieved by the RP's decision on the said claim, BBPL had filed an application with the Hon'ble National Company Law Tribunal (NCLT) challenging decision of the RP. Mr. Rakesh Wadhawan & Others had also filed Intervention Application in the matter. As informed to the CoC from time to time various hearings took place before Hon'ble NCLT from December 2020 to April 2021 in the matter wherein the Bench orally directed not to consider the agenda item regarding liquidation. Further on 28th April, 2021, the Hon'ble NCLT directed not to consider liquidation till the order on application filed by M/s BBPL and also other applications are decided. Further, at the hearing held on 30th April, 2021, the Hon'ble NCLT had directed all the parties to submit their written submissions within a week's time and the matter was reserved for orders and the order was awaited. Since no order was passed by Hon'ble NCLT subsequent to 30th April, 2021, the RP requested his legal advisors to move Hon'ble NCLT. Accordingly, the advocates or FP, M/s Crawford Bayley & Co., filed a praecipe in Hon'ble NCLT on 20th Jul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating Authority and by an order dated 16th August, 2021 has excluded certain period. The Learned Senior Counsel submitted that in view of the exclusion, period of 270 days would expire on 30th September, 2021. Counsel for the Resolution Professional, however, submits that the 90 days period expired much earlier and he has to take instructions as according to him by 30th September, 2021, 330 days would expire. 11. We have perused the impugned order and the findings recorded at Para 6 to 16. The Adjudicating Authority extensively heard and has in details dealt with the matter. In Para 7 and 8 of the impugned order the Adjudicating Authority observed as under: "7. It is very clear from the above definition that a mere right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured; and a right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, unmatured, disputed, undisputed, secured or unsecured is enough to qualify as an Operational Debt. However, a mere right to recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent RP and the steps taken by him while dealing with the applicant's claim. Therefore, with the above directions, IA 2129/2020 is hereby dismissed." 14. In para 16 the observations are: "16. The CIRP of the Corporate Debtor is at an advanced stage. when the present application was filed by the applicant. There were prospective Resolution Applicants willing to submit their Resolution Plans. Since the outcome of the present application has direct bearing on the Prospective Resolution Applications, this Bench orally directed the CoC not to take any action till the disposal of this application. In view of dismissing the above application filed by the applicant M/s Budhpur Buildcon Private Limited, the above oral direction is no longer necessary and accordingly the CoC is at liberty to take a call about the further course of action." 15. Considering the averments being made and the findings recorded by the Adjudicating Authority read with part of Appeal reproduced above, prima facie it appears that there is an issue to be dealt with and decided in this Appeal. The observations of the Adjudicating Authority also cannot be out right ignored. Whether or not the Appellant could b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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