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TMI Blog2021 (6) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... he Operational Creditor. 3. This Tribunal came to admit the Petition as filed by the Operational Creditor. As a consequence of admission, CIRP was initiated against the Corporate Debtor vide its Order passed on 14.03.2019. While admitting the Petition and initiating the CIRP, the name of IRP in respect of Corporate Debtor was not proposed; this Tribunal in the absence of any IRP being proposed, appointed the Applicant as IRP herein and the extract of the name of the IRP along with other particulars from the above said Order dated 14.03.2019 is given below: Mr. Rajagurusami Maheswaran, Reg. No. IBBI/IPA-001/IP-P00584/2017-2018/11025 E-mail Id: [email protected] 4. It is pertinent to note that the above details in relation to the IRP had been circulated by Insolvency and Bankruptcy Board of India (hereinafter to be referred to as "IBBI") while circulating an empanelled list to this Tribunal for the period January to June 2019 and from which, in view of no proposal for IRP being made by the Operational Creditor, this, Tribunal chose a name for appointment of IRP from the empanelled list as circulated by IBBI for the six months period and in the circumstances, it is eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated by this Tribunal. 8. Thus, it is evident that, by the actions of the Operational Creditor, the entire CIRP initiated by this Tribunal taking into consideration the provisions of IBC and the strict time lines provided thereunder, which has also been pointed out by the Hon'ble Supreme Court to be followed with all seriousness in the matter of Arcelor Mittal India Private Ltd. vs. Satish Kumar Gupta & Ors., had been made a mockery and presently this Tribunal is confronted with an Application filed under Section 12(A) of IBC, 2016 for the withdrawal of the CIRP process at the instance of Operational Creditor by the Applicant that too after a lapse of almost 2 years. 9. It is averred in the Application based on the facts as narrated above that having come to know about the initiation of the CIRP from the Operational Creditor only in the month of November 2019, the IRP had chosen to issue the publications in Form-'A' calling for claims, however, bereft of any particulars as to when and how the publication was made etc. Pursuant to the publication of Form-'A' it is stated no claims had been received by the Applicant/IRP and when the IRP contacted the Operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /w Rule, 11 of NCLT Rules, 2016 numbered as IA/2/2021. In relation to the Application IA/8/2021, it is seen that the said Application has been filed seeking for withdrawal under Section 12A of IBC, 2016. Even though there has been an inordinate delay on the part of IRP to assume charge as such, in respect of the affairs of the Corporate Debtor, pursuant to the Order of Admission passed by this Tribunal dated 14.03.2019 and initiating CIRP and appointing the IRP in relation to the Corporate Debtor. 13. However, it is evident from the averments contained in the Application that pursuant to the publications effected by the IRP in Form-'A' being clarified by Ld. Counsel for the Applicant upon specifically posted for clarification, on 03.01.2020 in "Business Standard" in English and again on the same day (i.e.,) 03.01.2020 in "Malai Malar" in Tamil as well and that no claims had been received other than that of the Operational Creditor and in the circumstances the Operational Creditor, at whose instance the CIRP was initiated, constituted the Sole Member of the CoC and given its consent by filing the necessary Form-'FA' annexed as Annexure-'A' along with the typ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that the Registry of this Tribunal is required to communicate to the parties concerned in relation to the Order passed by this Tribunal and that the same was not communicated, however, on the verification by the IRP/Applicant it was noticed that the same available in the SPAM folder of his mail Id. sent on 19.03.2019 from which it is evidenced that the Registry had duly communicated about the appointment, however, the same was not opened for the reasons stated in the Application. Even though the CIRP has been initiated as early as on 14.03.2019 and 275 days have been lost it is to be seen even without making the public announcement calling for the claims of the Corporate Debtor by the IRP/Applicant and for the constitution of the CoC." From the above paragraph reproduced, it is quite evident that the reasons for the Applicant/IRP not acting is touted to be that, since the communication sent by the Registry of this Tribunal of the Order dated 14.03.2019 had lodged itself in the SPAM FOLDER of the e-mail of the Applicant, he was not essentially aware of the Order dated 14.03.2019 initiating the CIRP of the Corporate Debtor and appointing him as an IRP. 17. The Applicant curiou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serve that as per Section 16(5), the term of IRP shall not exceed 30 days from the date of his appointment. The reading of the above provisions of IBC, 2016 clearly brings forth the importance of an IRP in the implementation of CIRP process and any laxity on the part of IRP or any hesitancy on the part of IRP to act in accordance with the provisions of IBC, 2016 virtually results in a setback, not only to the CIRP process, but to all the stakeholders concerned including the creditor who has approached this Tribunal in the first place for the initiation of the CIRP process, as well as to those similarly placed creditors as well as to the CD itself. Thus, the initial period of 30 days is very crucial under the provisions of IBC, 2016 soon after the Petition is admitted, as during the said period, the control of the assets and affairs of a Corporate Debtor is effectively taken out of the hands of the persons who have been hitherto managing the affairs of the Corporate Debtor and on behalf of its behalf shareholders to the hands of the IRP for the benefit of creditors which process effectively stands stultified by the inaction on the part of the IRP. ABOUT PREPARATION OF A PANEL OF R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsent to act as a Resolution Professional or Liquidator for a period of 6 months commencing from 01.01.2018 to 30.06.2018, it is stated that the IRP should not be discharged from his duties to act as an IRP in relation to the CD as sought for in the Application and in the circumstances the functions of IRP being of serious nature and in the nature of public functions, the casual attitude should not be entertained. ABOUT ROLE OF INSOLVENCY PROFESSIONAL AS REFLECTED IN THE BAKRUPTCY LAW REFORMS CERTIFICATE (14) .......In this connection, the role of the Insolvency Professionals on the one hand and on the other that of AA and their interplay has been succinctly brought in the Report of the Bankruptcy Law Reforms Committee Volume I, Rational and Design, 2015 and at Chapter 4.4 dealing with the Insolvency Professionals after elucidating the role of IPs in the process of Insolvency and Bankruptcy and while stressing the importance of IPs concludes with the following paragraph of Chapter 4.4, which is extracted hereunder: The role of the IPs is thus vital to the efficient operation of the insolvency and bankruptcy resolution process. A well functioning system of resolution driven by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Order to which the Registry as already seen had duly communicated. Hence, there is no dereliction of its duty on the part of the Registry as it is also required to be noted that Rule 50 of NCLT Rules, 2016, in relation to provision of certified copy of the Order, the Registry is required to send certified copy to the parties concerned free of cost and in all other cases to be made available with cost as evident from the bare reading of the said Rule 50 as extracted in the Application itself. The IRP appointed by this Tribunal can by no stretch of imagination be considered as a party to the Order dated 14.03.2019 and in the circumstances there is no gainsaying that Rule 50 of NCLT Rules, 2016 had not been followed. 20. The plea of "Spam Mail" due to which there had been a delay in compliance of necessary formalities, whether can be countenanced on the part of the party claiming the same fell for consideration in the matter of Opus Group AB vs. Ministry of Road Transport and Highways in WP(C) No. 2999/2013 before the Hon'ble High Court of Delhi, wherein the question which arose in short was that since the Respondent had communicated to a general e-mail id as given in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l" of the recipient fell for consideration before the Hon'ble High Court of Punjab and Haryana in the matter of Nisha Devi vs. State of Punjab & Ors. relating to employment opportunity and the decision rendered on 04.07.2013 reported in MANU/PH/2757/2013 is to the effect that where the e-mail had been sent to the recipient to the e-mail provided, but however had got lodged in the 'spam mail' of the said e-mail id, cannot be a ground for the relief sought for therein. 22. In the instant case on hand, it is required to be noted that upon the Applicant providing the information in relation to his e-mail id to IBBI seeking for empanelment in accordance with procedure laid down as discussed in Takkshill Enterprises case referred supra, IBBI had forwarded the list of RP's/Liquidator's who can be appointed as such where the Operational Creditor has failed to propose a name and in the main Application in CP/737/IB/2018 since the Operational Creditor had failed to disclose a name of the IRP proposed, this Tribunal chose to appoint the Applicant as the IRP of the Corporate Debtor, M/s. Sandhhya Shipping Services Private Limited and based on the information forwarded by I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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