TMI Blog2019 (11) TMI 1623X X X X Extracts X X X X X X X X Extracts X X X X ..... ys for the completion of CIRP. We have gone through the grounds on which the RP has claimed extension period of CIRP. One of the grounds on which the RP claimed exclusion/extension of period of CIRP, is that in the meeting of CoC held on November 8, 2019 it was unanimously resolved that the RP is authorized to file an application with the hon'ble National Company Law Tribunal for seeking exclusion/extension of the CIRP period of 45 days and the reason for filing an application for exclusion/extension of CIRP period is for RP has received two resolution plans and members presented in the meeting are not authorized to take decision, CoC members are required to send the proposal to their respective competent authority and needed approx. 15 to 20 days to complete before voting. There is no dispute that this Adjudicating Authority, in the light of the decisions passed by the hon'ble apex court in Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta, is empowered to exclude/extend the period of CIRP beyond 330 days but the embargo has already been imposed by the hon'ble apex court while exercising this power and the embargo is, it is only in exceptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. CoC 7th meeting 24-05-2019 8. Order on C. A. No. 784 of 2019 filed by the RP for extension of CIRP by 90 days allowed by the Adjudicating Authority 01-07-2019 9. Last date for submission of expression of interest as decided in the 7th CoC 15-06-2019 10. CoC 8th meeting 18-06-2019 11. Last date for submission of expression of interest extended as decided in the 8th CoC 01-07-2019 12. CoC 9th meeting 03-07-2019 13. RP issued a provisional list of eligible prospective resolution applicant 09-07-2019 14. Third valuer was appointed 26-07-2019 15. Last date of the resolution plan was fixed 13-08-2019 16. RP received one resolution plan from Sunheri Texcraft P. Ltd. Therefore 10th meeti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interest was extended twice on the account of appointment of the process advisor and considering the time that would be taken by such process advisor to utilize their resources for the value maximization and better resolution of the corporate debtor. (iii) The CIRP commenced on December 19, 2018 and the first CoC meeting was held on January 18, 2019 however there was a considerable delay in appointment of the IRP as the RP, and the applicant was only appointed and confirmed only in the 6th meeting of the CoC held on May 4, 2019, i. e., with a delay of approximately five (5) months. (iv) Two valuers were appointed on February 19, 2019. Despite multiple reminders and requests one of the valuer submitted its report only on April 16, 2019 with a delay of 2 months and the second valuer failed to submit its report causing a delay of more than 74 days and was terminated. Subsequently a new valuer was appointed without any delay on May 5, 2019 whose report was submitted in July. However due to substantial difference of more than 20 per cent. in the valuation by both the valuers as per the CIRP Regulations, third valuer was appointed on July 26, 2019. The third valuer submitted its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its 15th meeting held on November 8, 2019. 6. Learned counsel appearing for the RP, in course of his arguments submitted that in view of the latest decision of Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta [2020] 219 Comp Cas 97 (SC), Civil Appeal Nos. 8766 and 67 of 2019 the hon'ble apex court held that the CIRP may be extended even beyond the period of 330 days and shows that is not the mandatory provision of the law rather is the discretion of the Adjudicating Authority to extend the period of 330 days for the completion of CIRP. 7. In the light of the aforesaid submissions and the decision upon which the applicant placed reliance, we would like to consider the prayer of RP to extend/exclude CIRP of the corporate debtor by 45 days beyond the CIRP period. Before considering the submissions made on behalf of the RP, we would like to refer the decisions upon which learned counsel appearing for the RP has placed reliance on the matter of Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta [2020] 219 Comp Cas 97 (SC), Civil Appeal Nos. 8766 and 67 of 2019 wherein the constitutional validity of section 12 of the Code was challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would like to refer the decisions of State Bank of India v. Manibhadra Polycot, Civil Appeal Nos. 4656-4657 of 2019 in which the hon'ble Supreme Court has set aside an order passed by the National Company Law Appellate Tribunal whereby the National Company Law Appellate Tribunal had excluded a period of 21 days from being counted as part of the 270 days' period which was otherwise over in the case. These 21 days were divided into 3 groups as under : Reason for exclusion Dates No. of days taken The order of the Adjudicating Authority was not received by the resolution professional CIRP order date : November 17, 2017 IRP took charge : November 23, 2017 7 days The CoC did not allow the working IRP to conduct the CIRP by restricting him to publish an EOI mentioning that the same would be done by the coming RP, the order for which was awaited. Mail from largest FC restraining IRP to publish EOI : March 6, 2018 Date of new RP taking charge : March 17, 2018 11 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said resolution, we would like to consider the submissions of learned counsel appearing for the RP where on this ground in view of the decisions of hon'ble apex court given in two decisions which have referred in the aforementioned paragraph. This Adjudicating Authority is competent to allow the prayer of RP and exclusion/ extension period of 45 days as prayed by the RP. 12. There is no dispute that this Adjudicating Authority, in the light of the decisions passed by the hon'ble apex court in Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta [2020] 219 Comp Cas 97 (SC), Civil Appeal Nos. 8766-67 of 2019, is empowered to exclude/extend the period of CIRP beyond 330 days but the embargo has already been imposed by the hon'ble apex court while exercising this power and the embargo is, it is only in exceptional cases . The time can be extended. The general rule being that 330 days is the outer limit within which resolution of the assets of the corporate debtor. 13. Therefore, at this juncture, we would also like to consider the decision given in State Bank of India v. Manibhadra Polycot, Civil Appeal Nos. 4656 and 4657 of 2019 in which the hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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