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TMI Blog2023 (10) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on account of the fact that the CIRP was nearing completion and grant of one further extension would result to a positive outcome so that the Corporate Debtor could be put back on its feet. However, bare perusal of the order dated 25.08.2022, passed by the NCLT, Guwahati Bench makes it clear that there is no such indication in the order that the extension was being granted for the reason that the resolution plans submitted on record, were likely to revive and bring the Corporate Debtor back on its feet. Rather a perusal of the order would indicate that the same has been rendered in gross ignorance to the mandate of first proviso to Section 12(3) of the IBC of 2016. Appeal dismissed. - HON BLE THE CHIEF JUSTICE SANDEEP MEHTA AND HON BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND For the Appellant : Mr. Nirmal Goenka, Advocate. For the Respondent(s) : Dr. Ashok Saraf, Senior Advocate assisted by Mr. N.N. Dutta, Advocate for respondent Nos. 1 2. Mr. S. Dutta, Advocate for respondent No. 3. Ms. S. Yasmin, Advocate for respondent No. 4. Mr. D. Baruah, Advocate for respondent No. 5. JUDGMENT ORDER [SANDEEP MEHTA, CJ] The instant intra-Court wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleted within a period of three hundred and thirty days from the insolvency commencement date, including any extension of the period of corporate insolvency resolution process granted under this section and the time taken in legal proceedings in relation to such resolution process of the corporate debtor: Provided also that where the insolvency resolution process of a corporate debtor is pending and has not been completed within the period referred to in the second proviso, such resolution process shall be completed within a period of ninety days from the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2019] 4. The background facts necessary for disposal of the writ appeal, are noted hereinbelow. The respondent No. 1 (writ petitioner No. 1, Dyna Roof Private Ltd.) is a private limited company, having its registered office in the Ri Bhoi District of Meghalaya, whereas the respondent No. 2 (writ petitioner No. 2, Rohin Kumar Hansaria), is the proprietor of a firm named, Steel Sales Corporation, having its office at S.J. Road, Athgaon, Guwahati. Both the respondents are unsecured financial creditors of the Corporate Debtor RSH Agro Products Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e resolution proceedings were not being completed within the prescribed period and thus, an amendment has been brought into Section 12 of the IBC of 2016. He submits that in the provisions of Section 12 of IBC of 2016 as they earlier stood, the limitation for completing the insolvency CIRP was curtailed to 90 days beyond the mandatory limit of 180 days provided in Section 12(1) of the Code. However, the Government realized that the time period is proving to be inadequate. Hence, the Section was amended, wherein a proviso has been introduced that the Corporate Insolvency Resolution Process shall be completed within a period of 330 days including any extension of the period of CIRP granted under this Section. He urged that it has been experienced that even this extended period of 330 days is proving insufficient to conclude the CIRP and thus, the Benches of the NCLTs have been granting appropriate extensions for completion of the resolution process. He urged that the word mandatorily as occurring in the second proviso to Section 12(3) of the IBC of 2016, was struck down by Hon ble the Supreme Court in the judgment rendered in Committee of Creditors of Essar Steel India Limited Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to revive the Corporate Debtor. He urged that the further extension of 30 days, which is granted by the NCLT, would mean that the time for completion of the proceedings was being extended to 300 days which is well within the outer limit of 330 days. He thus urged that the order passed by the NCLT, dated 25.08.2022, granting extension of 30 days for completion of the CIRP, is perfectly valid and unassailable and hence, the learned Single Judge was not justified in causing interference into such a well reasoned order. 12. Dr. Ashok Saraf, learned Senior counsel representing the respondent Nos. 1 and 2 (writ petitioners, Dyna Roof Private Limited and Mr. Rohini Kumar Hansaria) has raised a serious objection regarding maintainability of the instant writ appeal at the instance of the appellant, being the Resolution Professional, urging that the Resolution Professional is supposed to act as an independent facilitator and thus, he is not required to act at the behest of any of the parties. The fact that the appellant has approached this Court by way of the instant writ appeal for assailing the judgment of the learned Single Judge, clearly establishes that he is acting in a partisan ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Single Judge at para 30 of the impugned judgment, wherein it was observed that extension beyond 330 days would be permissible upon satisfaction of the condition precedent that it would be in the interest of all stakeholders that the Corporate Debtor would be put back on its feet instead of being sent into liquidation. 16. Dr. Saraf pointed out the learned Single Judge, directed the Resolution Professional to produce the records so as to satisfy the Court regarding the existence of a resolution plan which, if implemented, would lead to a situation wherein, the Corporate Debtor would be put back on its own feet. The Resolution Professional produced the minutes of 14th meeting of the COC, dated 12.08.2022 wherein, there is no such indication that any concrete proposal was in place which could satisfy the Court that the Corporate Debtor was likely to be put back on its feet. 17. On these grounds, Dr. Saraf implored the Court to dismiss the writ appeal and affirm the impugned order. 18. We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the impugned order and the material placed on record. 19. At the outset, we are pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving the provision otherwise intact, we strike down the word mandatorily 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. 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 330 days from the insolvency commencement date, including extensions and the time taken in legal proceedings. However, on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation and that the 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, the delay or a large part thereof bein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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