TMI Blog2020 (9) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... icant has made an even more unacceptable averment that the Executive Chairman was busy, and was frequently travelling abroad and missed the newspaper publication calling for EOIs and was unaware of the last dates i.e. 26.12.2019 and 09.02.2019 for submission of EOI and Resolution Plan respectively. This is a patently bald statement without any merit whatsoever, keeping in view the strict timelines provided in the Code for completion of the CIRP. The same is liable to be rejected. Application dismissed. - I.A. No. 111 of 2020 in C.P. (IB) No. 43/BB/2019 and I.A. No. 129 of 2020 in C.P. (IB) No. 43/BB/2019 - - - Dated:- 29-5-2020 - Rajeswara Rao Vittanala, Member (J) and Ashutosh Chandra, Member (T) For the Appellant : Dhyan Chinnappa, Senior Counsel and Vijay Narayan, Advocate, For the Respondent : Party-in-Person, Uday Holla, Senior Counsel and Perikal Arjun, Advocate ORDER Ashutosh Chandra , Member ( T ) 1. I.A. No. 111 of 2020 in C.P. (IB) No. 43/BB/2019 is filed by 'Bilagi Sugar Mill Limited' Prospective Resolution Applicant (hereinafter referred to as the 'Applicant') U/s 60(5) of the IBC, 2016, r/w Regulation 36A of CIRP Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Plans are yet to be accepted, the Applicant addressed an email communication dated 15.02.2020 to the Respondent furnishing all the relevant documents and verbally requesting him to kindly condone the delay in submitting the expression of interest, and permit the Applicant to submit the Resolution Plan at the earliest. The Applicant also undertook to submit the Resolution plan at the earliest, with a view to ensure that no delays are caused. (4) The Applicant was hopeful that given their experience and expertise in the very same industry, their expression of interest would be duly considered. The Applicant also met the criteria specified by the Committee of Creditors for prospective Resolution Applicants, and the Applicant does not suffer from any infirmity that is specified in section 29A of the Code. The Applicant also undertakes to intimate the Resolution Professional if it becomes ineligible at any time during the Corporate Insolvency Resolution Process, and also to maintain confidentiality of the information and shall not use such information to cause an undue gain or undue loss to itself of any other person and comply with the requirements under sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process would only serve to enhance the process, and maximize the value not just for the committee of creditors, but also for all the other creditors/stakeholders of Corporate Debtor. d) The Respondent ought to have considered that the Insolvency and Bankruptcy Code, 2016 was introduced not with the objective of seeing that Companies get liquidated, but to ensure that a mechanism whereby companies which are in state of insolvency can be revived, is created. By rigidly adhering to timelines, the Respondents have given a go by to the true spirit of the Insolvency and bankruptcy Code, 2016. Further, the Respondents ought to have noted that the Hon'ble Supreme Court of India, as well as the various Hon'ble High Courts and the Hon'ble National Company Law Appellate Tribunal have held that the timelines prescribed in the I B Code, 2016 are only directory and not mandatory in nature. Given that the timelines, in this instance, were in the way of ensuring the revival of the Corporate Debtor, the Respondents ought to have provided an opportunity to the Applicant. It is well-settled principle that procedure cannot defeat substantial rights of parties. e) They have reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of EOIs was extended till 30.12.2019. He has filed five detailed progress reports, till date before the Tribunal to keep this Tribunal abreast with the progress of the CIRP. The RP has been diligent in performing his statutory duties with the support of the CoC and has not missed any deadlines by causing inordinate delays. (2) It is true that the Applicant addressed an e-mail to the RP on 15.02.2020 by furnishing the Applicant Company's Certificate of Networth and other documents and requested the RP to condone the delay in submitting the EOI and undertook to submit the resolution plan at the earliest. The RP replied to the e-mail addressed by the Applicant on 16.02.2020 and invited the Applicant's attention to the deadlines prescribed in the invitation for EOI, Evaluation Criteria, and Evaluation Matrix and that the bids were opened on 11.02.2020. The RP also pointed out the relevant provisions under the CIRP Regulation, 2016 to the Applicant and accordingly rejected the EOI of the Applicant. (3) At this juncture, it is relevant to highlight that in the 2nd CoC meeting, specific criteria for prospective resolution applicants was discussed and it was resolved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification dated 03.07.2018 w.e.f. 04.07.2018 bearing number IBBI/2018-19/GN/REG 031. The erstwhile Regulation 36A did not expressly stipulate to reject the EOIs received at a belated stage. The Legislature has cautiously substituted the present Regulation 36A which gives no discretion whatsoever for the RP to consider EOIs received after time lapse. Therefore, the RP did not have any discretion to entertain the EOI by the Applicant, after the lapse of deadline specified in the invitation, much less the Applicant who did not meet the evaluation criteria as well. (7) It is contended that the questionable motives of the Applicant Company are to be gathered from the circumstances under which the Applicant Company has approached this Tribunal with unclean hands, by suppressing facts. One Mr. Shivanagowda Rudragowda Patil, one of the Directors of HDM Infrastructure Private Limited, is also a Director at the Bagalkot District Central Co-operative Bank Ltd., which bank is lead banker to the consortium arrangement for lending to the Corporate Debtor and also a member of the CoC. It was well within the knowledge of the Applicant that the CoC would meet on 28.02.2020 to accept the resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the RP, Public Announcement seeking/invitation for expression of interest, the last date for the same, the treatment of the Applicant's EOI etc. are not in dispute and are part of record. However, the Applicant pleads ignorance of the same and contends that the CIRP started only in the first week of February 2020. This assertion we find to be patently untenable as the Code itself prescribes that the CIRP commences on the date the Petition u/s 7 or 9, as the case may be, is admitted, which in this case was 27.09.2019. 8. Further, the Applicant has made an even more unacceptable averment that the Executive Chairman was busy, and was frequently travelling abroad and missed the newspaper publication calling for EOIs and was unaware of the last dates i.e. 26.12.2019 and 09.02.2019 for submission of EOI and Resolution Plan respectively. This is a patently bald statement without any merit whatsoever, keeping in view the strict timelines provided in the Code for completion of the CIRP. The same is liable to be rejected. 9. On the other hand the RP has followed the timelines prescribed in the Code and the Regulations in regard to the conduct of the CIRP. The list of prospect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 in C.P. (IB) No. 43/BB/2019, seeking to be impleaded in the proceedings in IA No. 111 of 2020. In the said IA, it is stated that insolvency commencement date in the said Petition was 27.09.2019. As per the invitation for EOI dated 05.12.2019 published in pursuance to the commencement of insolvency, the last date for submission of the resolution plan by resolution applicants was 09.02.2020. In due adherence to the terms of the invitation for EOI, on 08.02.2020 the Impleading Applicant submitted before the CoC of the Respondent its resolution plan for the amount of ₹ 10.35 crore. The Impleading Applicant's resolution plan was short listed by the RP and presented to COC along with another resolution applicant, viz. T. Rajkumar. On 18.02.2020 it was the Impleading Applicant's resolution plan for ₹ 10.35 crore alone that was confirmed. In consideration of the CoC's decision, the Impleading Applicant submitted a revised resolution plan wherein the amount was enhanced from ₹ 10.35 crore to ₹ 17 crore. During the CoC meeting held on 28.02.2020 the Impleading Applicant's resolution plan for ₹ 17 crore was duly approved. The instant applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
