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2018 (12) TMI 1708

..... Section 60(5)(c) of Insolvency and Bankruptcy Code, 2016 r/w Rule 11 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- The Counsel for the Applicant has submitted that since the Information Memorandum was not ready, it was not possible to understand the detail position of the business of the Corporate Debtor, and therefore, there is non-compliance of the provisions of Section 29 of the I&B Code, 2016 r/w Regulation 40 A. Even if it is assumed that the Information Memorandum has not been made ready as per the model timeline, then as to how one of the suspended Directors, who is Applicant herein, can said to be an aggrieved party. Nevertheless, the other details were available with the Resolution Professional which he stated .....

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..... 2016). 2. The prayer made in the Application is to reject the resolution passed on 08.10.2018 at 19th Committee of Creditors' (CoC) meeting for liquidation of Corporate Debtor viz., M/s. Oceanic Edibles International Limited, Chennai-94 and to direct the Respondents to issue the Information Memorandum and consider all the Resolution Plans on merits in accordance with law and to pass such further order or orders as deemed fit under the circumstances and thus render justice. 3. During the course of arguments the Counsel for the Applicant has referred to various documents including the Information Memorandum and gone into details in relation to the Minutes of Meetings of the CoC held on various dates, deliberations made and decisions take .....

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..... orporate Person under this Code. 5. The Counsel for the Applicant has further submitted that the Tribunal has mandate to go into the facts of the CIR Process in relation to the issuance of 'Information Memorandum' and 'Expression of Interest'. He has submitted that for the purpose of issuance of 'Expression of Interest' there requires 'Information Memorandum', which needs to be prepared as per the Regulation 40 A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2018. Having made these submissions, the Counsel for the Applicant has prayed for exclusion of 79 days from the total period of CIR Process of 270 days which got expired on 08.06.2018. 6 .....

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..... t is worthwhile to be mentioned that the 'Expression of Interest' was issued by the erstwhile Resolution Professional without prior approval of the CoC. 8. On 07.04.2018, the new Resolution Professional has issued the "Expression of Interest", after seeking the approval of the CoC and the time period was extended for filing the response to the "Expression of Interest", till 14.04.2018, but there was no response from any prospective Resolution Applicant. In the process, as per the submissions of the Resolution Professional, he has been carrying on the forensic audit as the nature of the business of the Company was in the form of full cash and the documents were not made available by the suspended Directors. It is .....

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..... orporate Persons) Regulations, 2018, which could not be made applicable with retrospective effect. The Resolution Professional has further submitted that the Application filed by the Applicant is not falling within the purview of Section 60(5)(c) of the I&B Code 2016 as the Applicant is one of the suspended Directors, who has no locus standi to seek either for an extension of the time period or exclusion of any of the time period of CIR Process, which is the sole discretion of the CoC as per the provisions of Section 12 of the I&B Code 2016. 11. Heard the Counsel for the Applicant, Resolution Professional and perused the record including the reply filed by the Resolution Professional. 12. Both the sides have submitted their argument .....

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..... ubmissions made by the Resolution Professional seem to have force, the same are accepted. 14. In the facts and circumstances as noted above and the perusal of the Minutes of all the Meetings of the CoC, there does not appear any justification for exclusion of the period of 79 days, from the time period of CIRP. The time period of 270 days has already been completed on 08.06.2018 and Order for Liquidation of Corporate has also been passed. Moreover, the relief prayed for cannot be granted to the Applicant who is a suspended Director of the Corporate Debtor as he has no locus standi to file such Application. The Application is devoid of merits and not maintainable. Therefore, the Application bearing No. 543/2018 stands dismissed. 15. Order is .....

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