9911796707
TMI Blog2022 (1) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditors). 2. Brief facts of this case are that Carbon Resources Pvt. Ltd. (Operational Creditor) filed an Application under Section 9 of IBC against the Dimension Steel & Alloys Pvt. Ltd. (Corporate Debtor) before Adjudicating Authority Kolkata for initiation of Corporate Insolvency Resolution Process (CIRP). The same was allowed vide order dated 18.10.2019 and Ms. Meena Sureka was appointed as Interim Resolution Professional (IRP). Subsequently, Mr. Bijoy Murmuria was appointed as Resolution Professional (RP). The RP has published Form-G on 30.12.2019 and revised Form-G on 21.01.2020. The last date to submit the Resolution Plan was 10.12.2020 which was extended to 22.12.2020. Despite such extension no Resolution Plan was received. In the 10th meeting held on 04.01.2021 Committee of Creditor (CoC) had decided to go for liquidation. The RP had moved an application IA No. 274/KB/2021 for liquidation. The time for submission of resolution plan was over, therefore C.P. Ispat Private Limited (R2) filed an application IA No.197/KB/2021 before the Adjudicating Authority for direction to RP (R1) to place the resolution plan submitted by R2 for consideration by the COC. The applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, submitted and/or circulated by the Respondent No.2 in any manner whatsoever. (d) An order of liquidation be passed in terms of section 33 of the Code." 5. The Application was dismissed by the Adjudicating Authority vide order dated 30.04.2021. Operative portion of the Order is as under:- "15. Given the circumstances and the fact that voting has already been taken place in resolution plan, we do not at this stage pass any orders with respect to liquidation of the corporate debtor. 16. In the circumstances, the prayers sought for in the present IA 426/KB/ 2021 cannot be granted at this stage. However, we direct that the entire process be concluded expeditiously. 17. I.A No. 426/KB/2021 shall stand disposed of accordingly." 6. The Appellant has challenged the order before this Appellate Tribunal, in CA (AT) (INS) 536 of 2021, however, vide order dated 02.08.2021 the Appeal was dismissed. The operative portion of the Order is as under:- "7. Having heard the Learned Counsel for the Appellant and keeping in view the main objective of Insolvency and Bankruptcy Code that all efforts should be made for resolution of the Corporate Debtor in the present matter when we have a R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso shall be construed as extension of a period for the purposes of the proviso to sub-Section 3 of Section 12 and the CIRP shall be completed within the period specified in that sub-section. Even the literal language of Section 12(1) makes it clear that proviso must be read as mandatory. For this purpose, cited the Judgment of Hon'ble Supreme Court in the case of Arcellormittal India Pvt. Ltd. Vs. Satish Kr. Gupta 2018 SCC Online 1733. 12. Learned Counsel for the Appellant further submitted that learned Adjudicating Authority erroneously held that the subject matter of the IA No.479/KB/2021 is similar to the prayers in IA No.426/KB/2021 and hence, this issue was settled on 30.4.2021. It is incorrect to say that the Order dated 30.4.2021 upheld by this Hon'ble Tribunal and hence attained finality. This Hon'ble Tribunal never dismissed the C A (AT) (Ins) No. 536 of 2021 rather it was disposed of with a direction to the authority to consider the resolution plan as has been placed before it in terms of the provisions of law on its own merits which the authority has miserably failed to comply with and thus the issue was never decided and consequently it did not attain finality. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing sent into liquidation. It may be open in such exceptional cases for the Adjudicating Authority and/or Appellate Tribunal to extend time beyond 330 days. Thus, Ld. Adjudicating Authority keeping in view of the main objective of the IBC exercised his discretion rightly even though RP and CoC has not strictly adhered to the timeline fixed in the Code, in the interest of all stakeholders of the Corporate Debtor. Thus, there is no substance in the Appeal and the Appeal may be dismissed. 16. Ld. Counsel appearing on behalf of the Respondent No. 1 adopts the argument advanced by the Ld. Sr. Counsel for the Respondent No. 2. 17. After hearing, learned Counsels for the parties, we have gone through the record. 18. Following issues arose for our consideration: - (i) Whether the subject matter of present Application IA No.479/KB/2021 is different to the prayer in IA No.426/KB/2021? (ii) Whether the time limit of 330 days provided in Section 12 of IBC is mandatory? Issue No. (i) Whether the subject matter of present Application IA No.479/KB/2021 is different to the prayer in IA No.426/KB/2021? 19. In the present case, the Adjudicating Authority vide Order dated 16.03.2021 condoned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e object of the IBC is the resolution of the insolvency of a Corporate Debtor. Efforts of all stakeholders has to be towards resolution of insolvency. There can be no dispute that the law mandates that CIRP proceedings have to be concluded within 330 days. Hon'ble Supreme Court, after noticing the above requirement of 330 days in Section 12, laid down in (2020) 8 SCC 531 - Committee of Creditors of Essar Steel India Ltd. vs. Satish Kumar Gupta and Ors. that normally as per law, insolvency resolution process has to be completed within 330 days maximum, but in exceptional cases, the period can be extended by Adjudicating Authority/ Appellate Tribunal. In paragraph 127 of the judgment, following has been laid down: "127. Both these judgments in Atma Ram Mittal [Atma Ram Mittal v. Ishwar Singh Punia, (1988) 4 SCC 284] and Sarah Mathew [Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721] have been followed in Neeraj Kumar Sainy v. State of U.P. [Neeraj Kumar Sainy v. State of U.P., (2017) 14 SCC 136 : 8 SCEC 454] , SCC paras 29 and 32. Given the fact that the time taken in legal proceedings cannot possibly harm a litigant if the Tribunal it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewly 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." 22. The Hon'ble Supreme Court in the above case has held that it would be in the interest of all stakeholders that the Corporate Debtor will be back on its foot instead of being sent into liquidation. It was further held that time taken in legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority and/or Appellate Tribunal. 23. The Hon'ble Supreme Court has held that in exceptional cases, time can be extended. The general rule being that 330 days is the outer limit within which resolution of the str ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
