TMI Blog2021 (6) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Overseas Bank is decided by this Adjudicating Authority. Since the applicant through the COC has failed to consider the Resolution Plan pending for consideration within the extended period of 40 days and also could not provide the cogent reasons for not complying with the direction, we are not inclined to extend the CIRP period by another 60 days beyond the period of 370 days. Application dismissed. - (IB) 266 (ND)/2019 and IA/1005/2021 - - - Dated:- 31-5-2021 - Abni Ranjan Kumar Sinha, Member (J) And L.N. Gupta, Member (T) For Appearing Parties: Abhishek Anand, Rahul Adlakha, Mohak Sharma, Mayuri Raghuvanshi, Nipun Gautam, Sanjay Gupta, Lakshika Chawla and Abhay Pratap Singh, Advocates ORDER Abni Ranjan Kumar Sinha, Member (J) 1. The present application is preferred by Resolution Professional of Horizon Buildcon Pvt. Ltd. under section 60(5) and section 12 of the Insolvency Bankruptcy Code, 2016, (hereinafter referred to as the Code ) for seeking appropriate directions. 2. Since the facts mentioned in the application are almost similar to the facts of the application bearing IA no. 5173/2020, in which this Adjudicating Authority vide ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation. 14. Considering the exceptional circumstances as narrated above, and the decision of the Hon'ble Supreme Court whereby the period of CIRP may be extended beyond the period of 330 days and the fact that the extended period of 60 days has also expired on 10/01/2021, we think it proper to give the last extension of 40 days to enable the CoC to consider the Resolution Plan pending its consideration. Hence, we hereby extend the period of 40 days beyond the period of 330 days, from the expiry of the period of 330 days. 15. Accordingly, the COC is directed to consider the Resolution plan pending for consideration within the extended period failing which, Resolution Professional is directed to take appropriate steps in accordance with the provisions of law.. ii. Further, the 9th meeting of CoC was convened on 06.02.2021 wherein, the Applicant herein apprised the members of CoC regarding few discrepancies in the Resolution Plan received from the Prospective Resolution Applicant. iii. Further, the Applicant herein apprised the members of CoC that the Applicant will send the observations on the Resolution Plan to the Prospective Resolution Applicant and will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified Resolution Plan in terms of typographical errors and the clarifications with respect to objections raised by financial creditors. The Applicant further apprised the members of CoC that since, the claim of Indian Overseas Bank has been treated as unsecured one by the Resolution Applicant, the Plan becomes non-compliant in terms of Section 30(2) of the Code. In view thereof, the Applicant in terms of the provisions of the Code being Section 30(4) of the Code was unable to place the Resolution Plan before the CoC for e-voting. Upon discussions and deliberations, as the issues are still persisting with respect to the Resolution Plan, it was decided to continue the meeting further on 17.02.2021. x. That the 10th meeting of the CoC was once again resumed on 17.02.2021, wherein few more objections were raised by the members of CoC in regard to the Resolution Plan. Furthermore, the issue of the claim of Indian Overseas Bank being secured or unsecured is pending adjudication before this Adjudicating Authority and therefore, the outcome may affect the Resolution Plan. In view thereof, the members of CoC instructed the Applicant to file an application seeking a further extension of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 2020 till 9th November, 2020 (the period covering the time spent in pursuing the extension application in the first instance) and 12th January, 2021 to 3rd February, 2021(i.e. the period for which the orders were reserved by the Adjudicating Authority on the application) is justifiably required to be excluded while counting and computing the period of CIRP. We accordingly allow this appeal and direct exclusion of period from 21st October, 2020 till 9th November, 2020 and 12th January, 2021 to 3rd February, 2021 for the purposes of calculation of CIRP period. The Appeal is accordingly disposed off. iii. The applicant, in support of his prayer, has placed reliance upon the following decisions: a. Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta Ors, Civil Appeal No. 8766-67 of 2019 b. Swiss Ribbons Pvt. Ltd. Anr. v. Union of India Ors, W.P. (c) No. 99 of 2018 c. Committee of Creditors of Trading Engineers International Ltd. v. Trading Engineers International Ltd. through Resolution Professional [Company Appeal (AT)(Ins) No. 61 of 2021] d. IDBI Bank Ltd. Vs. Mr. Anuj Jain Interim Resolution Professional, Jaypee Infratech Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received from the Prospective Resolution Applicant and also apprised the members of the CoC that he will send back the Resolution Plan to the Prospective Resolution Applicant to submit a rectified/modified Resolution Plan. We further notice that another ground taken by the Resolution Professionals that an application is pending for adjudication before this Adjudicating Authority wherein, the issue with respect to the claim of Indian Overseas Bank being secured or unsecured has to be decided and the CoC can come to a conscious decision about the feasibility, viability and distribution under the Resolution Plan at hand only after the disposal of that application. 7. That only after considering the submission of the Resolution Professional that a Resolution Plan was pending for consideration before the CoC, we had granted extension for 40 days beyond the period of 330 days. But on the basis of the averments made in the application and submissions made by the Ld. Counsel, it is seen that the Resolution Plan can only be placed before the CoC, once the application for claim of the Indian Overseas Bank is decided by this Adjudicating Authority. Here, we are constrained to observe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able restriction on a litigants fundamental right to carry on business under Article 19(1)(g) of the Constitution of India. This being the case, we would ordinarily have struck down the provision in its entirety. However, that would then throw the baby out with the bath water, inasmuch as the time taken in legal proceedings is certainly an important factor which causes delay, and which has made previous statutory experiments fail as we have seen from Madras Petrochem (supra). Thus, while leaving the provision otherwise intact, we strike down the word mandatorily as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigants right to carry on business under Article 19(1)(g) of the Constitution. The effect of this declaration is that ordinarily the time taken in relation to the corporate resolution process of the corporate debtor must be completed within the outer limit of 330 days from the insolvency commencement date, including extensions and the time taken in legal proceedings. However, on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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