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TMI Blog2022 (3) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. [ 2019 (11) TMI 731 - SUPREME COURT ], while striking down, the word mandatorily used in the amended proviso as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigant's right to carry on business under Article 19(1)(g) of the Constitution. A prospective Resolution Applicant is required to submit an unconditional EOI within the time stipulated under the invitation, which shall not be less than fifteen days from the date of the issue of invitation. Form G (IFEI), in this case has been published on 04.04.2021 by the RP clearly discloses that the property which is in a 4 star hotel is in a leased land. Form-G/IFEI admittedly did not contain any assurance of incorporation of renewal clause in the existing lease document - In the case on hand, since the plans submitted by the above Prospective Resolution Applicants being conditional, the Resolution Professional ought to have insisted the Prospective Resolution Applicants to make their plans un-conditional and ought not to have included in the provisional list of eligible Prospective Resolution Applicants. However, the Resolution Professi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of NITHM informed the COC that the terms and conditions of new lease agreement to be entered into with the SRA, will be decided by the Board of NITHM and will inform the COC shortly and based on that RP advised the Prospective Resolution Applicants to submit revised plan within one week from the date of intimation of new lease terms and conditions. 3. The details of exclusion and extension granted by this Adjudicating Authority are tabulated below: SI No IA No Order date Order Passed 1 327/2021 14.07.2021 Granted 99 days exclusion 2 629/2021 01.11.2021 Granted 90 days extension 3 61/2022 18.01.2021 Granted 60 days exclusion 4. After excluding 99 days the CIRP period got extended from 20.07.2021 to 27.10.2021 and 270 days of CIRP came to an end on 25.01.2022. Due to Omicron variant, the Hon'ble Supreme Court directed extension in period of limitation from 15.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation of Expression of Interest, for short, 'IEFF', has been published on 04.04.2021. As per section 12(1) of IBC, Corporate Insolvency Resolution Process, for short, 'CIRP', is expected to be completed within 180 days from the date of admission of the application for initiation of such process. As per the amended proviso, inserted w.e.f. 16.8.2019 in Section 12 IBC, the CIRP shall mandatorily be completed within a period of three hundred and thirty days from the insolvency commencement date, including any extensions and exclusions granted under this section. 11. Hon'ble Supreme Court of India, in Committee of Creditors of Essar Steel vs. Satish Kumar Gupta Ors., while striking down, the word mandatorily used in the amended proviso as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigant's right to carry on business under Article 19(1)(g) of the Constitution, further held that, The effect of this declaration is that ordinarily the time taken in relation to the corporate resolution process of the corporate debtor must be completed within the outer limit of 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, North East Leonia Tourism P. Ltd. and M/s. Maha Lakshmi Profiles have expressed their inability to continue, citing the stalemate as the reason and sought for return of the money. The other two resolution plans submitted by the prospective resolution applicants, Viz., M/s. Anirudh Agro Farms and M/s. Shreemukh Builders, are undoubtedly, conditional as both these applicants have been insisting that existing lease in favour of the CD, should have a renewal clause for another 33 years lest the first payment will not be made besides that the plan submitted is subject confirmation of clause relating to renewal of lease by another 33 years, which is evident from the minutes of COC meeting dated 13/01/2022. 14. The petitioner has claimed that NITHM, one of the members of COC, has informed (no record is filed before us) that the clause providing for renewal of the lease as conditioned by the above two prospective resolution applicants is under consideration by the Government of Telangana, the Resolution Professional at the behest of the COC has been filing applications for exclusion as well as extension of time from time to time, including the present application in hope of governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is in a 4 star hotel is in a leased land. Form-G/IFEI admittedly did not contain any assurance of incorporation of renewal clause in the existing lease document. 17. In the case on hand, since the plans submitted by the above Prospective Resolution Applicants being conditional, the Resolution Professional ought to have insisted the Prospective Resolution Applicants to make their plans un-conditional and ought not to have included in the provisional list of eligible Prospective Resolution Applicants. However, the Resolution Professional treated these two conditional plans as eligible and included them in the list of eligible Prospective Resolution Applicants. That apart, both the CoC and the resolution professional have actively indulged in not only promoting free negotiation of the terms of the resolution plan put forth by the parties/prospective resolution applicants but also seeking time to fulfill the contractual terms dictated by the prospective resolution applicants, in utter disregard the IBBI Regulation, supra, and the intent of IBC. 18. Hon'ble Supreme Court of India, in Ebex Singapore, supra, has held that; We cannot afford to be swayed by abstract co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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