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2022 (1) TMI 717 - AT - Insolvency and BankruptcySeeking exclusion of 87 days from the calculation of 180 days (CIRP period) - requirement of approval of the CoC - Section 12 of Insolvency & Bankruptcy Code, 2016 - whether the approval of the CoC under Section 12(2) of the Code is mandatory for seeking ‘exclusion of time” even if it is sought on grounds of lockdown/time lost during the period of any ‘Stay’/Status Quo /or for any other reason? - HELD THAT:- Section 12(2) speaks about ‘extension of the time’; Regulation 40C of the Regulations speaks about ‘exclusion of time’; the fact that the Adjudicating Authority had exercised its Discretionary Powers under Rule 11 of the NCLT Rules, 2016, that the period sought for excluding the time period lost is based on the reasons mentioned in the table in para 10; the fact that had this period not been excluded, the Company would have gone into Liquidation, which stage of ‘Corporate Death’ should be the last resort as envisaged by the Hon’ble Supreme Court in a catena of Judgements; that keeping in view the scope, spirit and objective of the Code and reading Section 12 together with Regulation 40C and also the unforeseen pandemic in mind, the Adjudicating Authority has rightly ‘excluded’ the period of 87 days from the CIRP period - Appeal dismissed. Nomination of IRP/RP for R-3 company - seeking a direction to remove the first Respondent as the IRP and forward the name of Mr. Munish Kumar Sharma to IBBI for its confirmation as the IRP - HELD THAT:- It is not in dispute that in the 1st CoC Meeting held on 18.03.2021, 6 out of the 9 Members of the CoC present at the Meeting voted in favour of the first Respondent to appoint him as RP of the ‘Corporate Debtor’. In the 2nd CoC Meeting held on 07.04.2021, 7 out of the 9 Members of the CoC voted in favour of the first Respondent to appoint him as the Resolution Professional of the Corporate Debtor. But it is seen that the first Respondent was neither appointed as the RP nor was he replaced. Hence, he has been continuing as the RP as per the provisions of Section 16(5) of the Code. The resolution for appointment of the IRP as the RP was not approved and the other resolutions for the appointment of another Insolvency Professional, nominated by the Applicant, RP was also put to vote, but was not approved as it could not receive the requisite majority of 66%. Sections 22 and 27 of the Code lay down pre-requisites for replacing the IRP. The appointment of an IRP is clearly provided under Section 22 and the replacement of IRP under Section 27 and therefore, this Application is disposed off with a direction to the CoC to proceed in accordance with law. There is no provision under the Code which empowers one of the Members of the CoC to approach this Tribunal seeking replacement of the IRP or RP when the same is rejected by a majority of Members of the CoC. It is alleged that the IRP conducted the Meeting of the CoC in blatant contravention of the Order of this Tribunal which has directed for maintenance of Status Quo - HELD THAT:- The material on record also establishes that the notice for the Meeting of the CoC was admittedly given on 13.08.2021 but was later postponed due to repeated requests by various creditors, including the Applicant and was finally convened on 23.08.2021. Additionally, it is observed that the Order of this Tribunal dated 03.08.2021 states, “in the meanwhile, Status Quo as exists today qua the Impugned Order shall be maintained”. It was interpreted by the IRP that as on 19.08.2021, 87 days has already been excluded from the CIRP period of 180 days. We also note that considering the Order passed by this Tribunal no items on the agenda were ‘put to vote’ in the CoC Meeting held on 23.08.2021 - this Contempt Case No. 20 of 2021 fails and is dismissed.
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