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2019 (8) TMI 877 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHIApproval of Revised Resolution Plan - revised plan has not been approved by the ‘Committee of Creditors’ - whether a case has been made out to exclude any period for the purpose of counting 270 days of the ‘Corporate Insolvency Resolution Process’? - HELD THAT:- In absence of any extraordinary situation and the fact that more than 270 days have already been passed, we find no ground to exclude any period. Further, once a plan is approved by the Adjudicating Authority under Section 31, if it is not implemented, that cannot be a ground to exclude any period - If a plan is approved under Section 31 within 180 days or much before completion of 270 days, one may request the Adjudicating Authority to allow the ‘Committee of Creditors’ to consider the other ‘Resolution Plans’, if the ‘Resolution Applicant’ is not ineligible and such plans were not rejected on merit but were not approved because best of the plan was approved by the ‘Committee of Creditors’. However, we are not inclined to decide such issue in view of the provisions of Section 33(3) and mandate under Section 12 of the ‘I&B Code’. In the present case, it is argued that none of the persons’ interests are prejudicially affected because of contravention, made any application to the Adjudicating Authority for liquidation order under sub-section (3) of Section 33, therefore, according to the counsel for the ‘Committee of Creditors’ and the ‘Resolution Professional’, no order could have been passed under Section 33(3) of the ‘I&B Code’ - in case where the ‘Resolution Plan’ earlier approved within a reasonable period of 180 days or much before completion of 270 days, one may request the Adjudicating Authority to allow the ‘Resolution Professional’/ ‘Committee of Creditors’ to consider the pending ‘Resolution Plan (s)’ or to call for fresh ‘Resolution Plan’/ ‘Revised Resolution Plan’, in absence of any application under Section 33(3) filed by any person whose interest is prejudicially affected by contravention of the plan by the ‘Corporate Debtor’. In the present case, more than 270 days have been completed much earlier and no case is made out to exclude any period, we hold that the Adjudicating Authority has no other option but to pass order of liquidation. The ‘I&B Code’ is silent on the issue as to whether the Adjudicating Authority has any jurisdiction to pass any order referring the matter to the Central Government or the Insolvency and Bankruptcy Board of India for action under Section 74(3) of the ‘I&B Code’ or under any of the provisions ‘for punishment’ as prescribed under Chapter VII of Part II of the ‘I&B Code’ - From sub-section (2) of Section 236, it is clear that no Special Court can take cognizance of any offence punishable under the ‘I&B Code’, including punishment prescribed under Section 74(3) of Chapter VII of Part II, save on a compliant made by the Insolvency and Bankruptcy Board of India or the Central Government or any person authorised by the Central Government in this behalf. It is the Adjudicating Authority who is required to refer such matter to the Insolvency and Bankruptcy Board of India or the Central Government to take up the matter to the Special Court if on investigation, if any case of offence under Chapter VII, including Section 74(3) is made out - we are not inclined to give any direction as was sought for by the ‘Committee of Creditors’ nor inclined to exclude any period calling for fresh ‘Resolution Plan’. More than 270 days having passed, the Adjudicating Authority will pass appropriate order of liquidation, which will be in accordance with law. The impugned order dated 13th February, 2019 so far it relates to grant of liberty to the ‘Resolution Professional’ and the ‘Committee of Creditors’ to move before the Insolvency and Bankruptcy Board of India or the Central Government is set aside - Appeal disposed off.
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