TMI Blog2020 (8) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... l on the basis of Committee of Creditors as mentioned in sub-Section 2 and 3 of Section 12 of the IBC, 2016. A glance of the impugned order dated 10.12.2019 indicates that the order of the Adjudicating Authority dated 05.12.2018 was not communicated to the IRP as well as to the Corporate Debtor by the office of the Adjudicating Authority (NCLT III New Delhi), due to inadvertence. - In this connection, this Tribunal relatively pointed out that Maxim , Actus , Curiae , Neminem , Gravabit i.e. Act of the Court shall harm no Home-Sapien. Owing to an inadvertent omission on the part of the Registry of the Adjudicating Authority , exclusion of period was rightly allowed. Appeal dismissed. - Company Appeal (AT) (INS) No. 05 of 2020 - - - Dated:- 10-2-2020 - [ Justice Venugopal M.] Member (Judicial) And [V.P.Singh] Member (Judicial) For the Appellant : Mr. Manoj Kumar Garg, Mr. Ashutosh kr. Singh And Mr.SidharthaPatra, Advocates For the Respondents : Mr. Saransh Kumar, Advocate (R-1). Mr. Anoop Kumar Goyal (Resolution Professional) (R2) JUDGMENT VENUGOPAL M. J. 1. The Appellant (Ex-Director of the A to Z Barter Pvt. Ltd ) has filed the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment, after lapse of the period of 180 days for completion of the Corporate Insolvency Resolution Process . 6. It is represented on behalf of the Appellant that even if it is assumed for a moment that the Insolvency Resolution Professional had no knowledge for his appointment prior to the email communications made by the 1st Respondent Company, then it is for the said Company to communicate the order dated 05.12.2018 to the Insolvency Resolution Professional within the period of Limitation and if it was not made, then point out the exceptional grounds in this regard before the Adjudicating Authority for the delayed communication sent to the Insolvency Resolution Professional , since the 1st Respondent Company had not deposited Rs.Two Lakhs to the Insolvency Resolution Professional , pursuant to the order dated 05.12.2018. 7. The other plea of the Appellant is that the impugned order dated 10.12.2019 was passed by the Adjudicating Authority without providing any opportunity of Hearing to the 3rd Respondent Company and as such impugned order is not valid one in the eye of law. 8. The Learned Counsel for the Appellant points out that the Adjudicating Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Adjudicating Authority for extension of the period of the corporate insolvency resolution process, only if instructed to do so by a resolution passed at a meeting of the committee of creditors by a vote of 75% of the voting shares. The provision does not stipulate that such application is to be filed before the Adjudicating Authority within 180 days. If within 180 days including the last day i.e. 180th day, a resolution is passed by the committee of creditors by a majority vote of 75% of the voting shares, instructing the resolution professional to file an application for extension of period in such case, in the interest of justice and to ensure that the resolution process is completed following all the procedures time should be allowed by the Adjudicating Authority who is empowered to extend such period up to 90 days beyond 180th day. (5) In the present case, the Adjudicating Authority has not hold that the subject matter of the case do not justify to extend the period. It has not been rejected on the ground that the committee of creditors or resolution professional has not justified their performance during the 180 days. In such circumstances, it was duty on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompleted within 180 days, even after excluding the period aforesaid, it will be open to the Committee of Creditors / Resolution Professional to request the Adjudicating Authority for more time. 8. One or other Adjudicating Authority including Adjudicating Authority (Hyderabad Bench), Hyderabad, (Kolkata Bench), Kolkata and (Ahmedabad Bench), Ahmedabad have also passed the order excluding such period taking into consideration the facts and circumstances of each case. 9. From the decisions aforesaid, it is clear that if an application is filed by the Resolution Professional or the Committee of Creditors or any aggrieved person for justified reasons, it is always open to the Adjudicating Authority/Appellate Tribunal to exclude certain period for the purpose of counting the total period of 270 days, if the facts and circumstances justify exclusion, in unforeseen circumstances. 10. For example, for following good grounds and unforeseen circumstances, the intervening period can be excluded for counting of the total period of 270 days of resolution process:- (i) If the corporate insolvency resolution process is stayed by a court of law or the Adjudicating Authority or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned in the Second Proviso to 12(3) of the Code that the Corporate Insolvency Resolution Process shall mandatorily be completed within a period of three hundred and thirty days from the Insolvency commencement date ( including any extension period of Corporate Insolvency Resolution Process ) and the time taken in legal proceedings in relation to such Resolution Process of the Corporate Debtor . 11. The Learned Counsel for the Appellant submits that because of the fact that the legal proceedings commenced from 01.06.2018 by the 1st Respondent/Operational Creditor by filing the Insolvency Application against the 3rd Respondent/Applicant before the Adjudicating Authority , three hundred thirty days including Legal proceedings in relation to Resolution process cannot be extended by National Company Law Tribunal beyond 25.04.2019, viz, three hundred thirty days as mandated in Second proviso to Section 12(3) of the Insolvency and Bankruptcy Code, 2016 . 12. The Learned Counsel for the Appellant contends that the Insolvency Resolution Professional had not started any Corporate Insolvency Resolution Process based on the order passed by the Adjudicating Authority dated 05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s IRP in the present mandate and further that a mandate of 180 days for concluding CIRP may be granted. 17. It is to be noted that Speedy is the gist for an effective, efficacious functioning of the Bankruptcy Code. As per Section 12(3) of the Code, the time period of CIRP is not to be extended more than once. It is to be borne in mind by the concerned authorities to adhere to the model timeframe envisaged in Regulation 40(A) of IBBI (CIRP for corporate person) Regulations 2016 as far as possible. In an extraordinary circumstance(s), the Adjudicating Authority can extend the Corporate Insolvency Resolution Process beyond the time limit adumbrated in Section 12(3) of the Code. The extension of time can be only on an application made by the Insolvency Resolution Professional on the basis of Committee of Creditors as mentioned in sub-Section 2 and 3 of Section 12 of the IBC, 2016. 18. Section 60(5) of the IBC jurisdiction upon the Adjudicating Authority to determine a Question of priorities or any question of Law or Facts, arising out of or in relation to the Insolvency Resolution based on the issue involved in a given case. An Adjudicating Authority is to adhere to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
