TMI Blog2021 (7) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to the opposite party - the CIRP has been set aside but the Application filed by the FC before this Bench under Section 7 of the IBC is alive and not dismissed. - IA No.41 of 2020 IN C.P. (IB) No.24/GB/2019 - - - Dated:- 5-5-2021 - Hon ble Shri H. V. Subba Rao , Member ( J ) And Hon ble Shri Prasanta Kumar Mohanty , Member ( T ) MR. MUKESH SHARMA ADVOCATE PETITIONER K. K. NANDI ADVOCATE RESPONDENT CONFERENCE ORDER [ Per : Mr. H. V. Subba Rao , Member ( J ) ] This IA is filed by M/s. Shree Sai Prakash Alloys Pvt. Ltd. Pvt. Ltd., the Corporate Debtor in compliance with the order of the Hon ble NCALT dated 18.06.2020 against Punjab National Bank, the Respondent herein, seeks the following reliefs: (a) To admit this Interlocutory Application; (b) To set aside impugned Order dated 23.08.2019 passed by this Bench; (c) To pass an order afresh, after providing an opportunity to the party in the light of the directions given in the body of the judgment dated 18.06.2020 passed by the Hon ble NCLAT, at New Delhi; (d) And/or any other order/orders as Your Lordship may deem fit and proper in the interest of justice. 2. The matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under consideration of the Bank but at the last moment, the Bank refused to accept the same during pendency of the Applications before the Adjudicating Authority. The Counsel states that the Appellants are still ready to settle the matters with the bank. Post the case for admission (after Notice) on 11th November, 2019. Meanwhile, IRP will not constitute COC, till next date. The IRP/ Resolution Professional will ensure that the company remains going concern and the manufacturing and production of the company do not suffer; payment of wages to the employees / workmen are made on time and if any material is supplied during Corporate Resolution Process , the payment must be paid to the supplier / creditor. The Insolvency Resolution Professional will also take aid of (suspended) Board of Directors, paid Directors and employees. The person who is authorised to sign the bank cheques may issue cheques only after authorization of the Interim Resolution Professional. The Banks having accounts of the Corporate Debtor will also cooperate with the Insolvency Resolution Professional to ensure compliance of this order. 5. Part of the Final Order dated 18.06.2020 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble NCLAT had remanded back the matter to the Adjudicating Authority, Guwahati Bench to pass an order afresh, after providing an opportunity to the party in the light of the directions given in the order of the NCLAT dated 18.06.2020. 4. The learned counsel further submits that presently the matter is pending before the Hon ble Supreme Court but no date for hearing has been fixed as yet. Therefore, he prays for an adjournment till 13.11.2020. 5. Prayer allowed. As requested matter is adjourned to 13.11.2020. The Respondent/FC is advised to submit a copy of the judgment of the Hon ble Supreme Court passed, if any, in between, in this regard. Copy of this order is to be sent to the learned counsel for the IA/CD. 5. In spite of the clear order of this Bench to the Petitioner (FC) and the Respondent (CD), they have not produced copy of any order of the Hon ble Supreme Court passed on the Writ filed by the Petitioner (FC) against the order of the Hon ble NCLAT dated 18.06.2020. 6. Section 7 (4) of IBC reads as under (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present in person. 13. The IRP is directed to file an Affidavit giving details of the assignment as IRP for the CD, undertaken right from the day i.e. 23.08.2019 till 09.02.2021, under whose direction, he has reportedly handed over the Management back to the CD, the details of expenses of ₹ 17,81,160/- (Rupees Seventeen lakh eighty one thousand one hundred sixty) as CIRP cost to be reimbursed, enclosing the copy of the agreements between him and the Petitioner FC and the Respondent CD, if any, towards his fees and revised Form H Compliance Report before the Registry. This Affidavit / clarification is to be submitted by 03.03.2021 . 8. In compliance with the order of this Bench, the IRP has filed the Affidavit dated 03.03.2021. Relevant part of the same is reproduced below: 5. That the Applicant was appointed as Interim Resolution Professional vide Order dated 23.08.2019 and the Applicant had received the copy of the order dated 23.08.2019 on 26.08.2019. Thereafter, on 27.08.2019 sent intimation letter to the Respondent no.1 and 2 conveying about the order of the initiation of the CIRP process. The Applicant had also sought the details from the management of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by making public announcement and the Applicant was about to constitute the committee of creditors but due to the order of stay passed by the Hon ble NCLAT it cannot be done. Therefore, the Applicant is bound by the order of Hon ble NCLAT. 21. That the order dated 18.06.2020 was brought in the notice of the Applicant by the Respondent No.2 on 20.06.2020 vide email and letter requesting to the Applicant for carrying out the necessary formalities towards handing over the control of all three group companies. A copy of the email dated 20.06.2020 sent by the erstwhile management to the Applicant is annexed herewith and marked as Annexure A9. 22. That after coming to the notice of the Hon ble NCLAT dated 18.06.2020 the Applicant had stopped controlling the affairs of the Corporate Debtors. The Hon ble NCLAT had remanded back the matter to this Hon ble Tribunal for adjudicating section 7 Application afresh and for passing of appropriate orders in terms of directions given. The relevant excerpts of the order passed by the Hon ble NCLAT are reproduced below for the reference of this Hon ble Tribunal. 28. In the circumstances as stated above this Tribunal allows th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of hearing the Applicant through the submissions of the Financial Creditor and the corporate Debtor came into the knowledge of the Applicant that both the parties have filed the Appeal before the Hon ble Supreme Court against the order of the Hon ble NCLAT dated 18.06.2020 but no copy of the Appeal has been served to the Applicant. The Applicant is not aware about the proceedings / development in the Appeal filed before the Hon ble Supreme Court also till the date of filing of the present Affidavit no copy of any order was handed over to the Applicant by the contesting parties. Even the Applicant was not impleaded as a necessary party neither by the Respondent No.1 in the Appeal filed before the Hon ble Supreme Court nor by the Respondent No.3. To the best knowledge of the Applicant the Hon ble Supreme Court had not stayed the order dated 18.06.2020 passed by the Hon ble NCLAT. Therefore, the order of Hon ble NCLAT is binding on the Applicant till the passing of any appropriate order. 28. That the Applicant in the Application under prayer clause (ii) had sought the relief for the dismissal of the Corporate Insolvency Resolution Process and not for the dismissal of the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Apex Court on 01.03.2021 and the Hon ble Apex Court vide order dated 01.03.2021 passed order to list the case on 26.03.2021. Copy of the order dated 01.03.2021 is annexed hereto and marked as Annexure II. 5. The respondent/corporate debtor has served upon the financial creditor payment schedule as per direction of the Hon ble Apex Court mentioned above. 6. That the financial creditor have not made any statements and averments in so far as the reliefs sought for by the corporate debtor in the application under Rule 11 of the NCLT Rules and craves leave of this Hon ble Tribunal to file additional reply / addendum if so required before this Hon ble Tribunal. 7. The financial creditor has filed this affidavit-in-reply to bring on record of this Hon ble Tribunal the pendency of Civil Appeal mentioned above before the Hon ble Supreme Court. 10. The judgement of the Hon ble Supreme Court dated 10.03.2021 is reproduced below: Upon hearing the counsel the court made the following O R D E R List on 26.03.2021. 11. It is observed during the course of proceedings that the IRP had handed over the Management of the Company to the erstwhile Management o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the NCLT Rules and craves leave of this Hon ble Tribunal to file additional reply / addendum if so required before this Hon ble Tribunal. Since the FC has preferred three appeals before the Hon ble Apex Court against the order of the Hon ble NCLAT, the three IAs i.e. IA Nos. 39, 40 and 41 of 2020 were not taken up. 16. The Original Applications under Section 7 of IBC were filed on 21.05.2018 and in the meantime 1036 days have since passed from the date of filing of the Petitions. As per Section 7 (A) of the IBC, an Application is required to be admitted or rejected within fourteen days of the receipt of the application. Hon ble Supreme Court has held in the matter of COC of Essar Steel India Ltd. Vs Satish Kumar Gupta [Civil Appeal No.8766 67/2019] that the CIRP must ordinarily be completed within the time limit of 330 days from the Insolvency Commencement Date unless extended by the Court on sufficient cause . 330 days is for CIRP. More than 1000 days have already passed even before the commencement of the actual CIRP in the process of OTS, acceptance/nonacceptance of OTS, Negotiations/further Negotiations. Commitments and failure of commitments, filing of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the CD also submits that there is no order from the Hon ble Gauhati High Court in the Writ Petition (C) No.6029 of 2019 filed on behalf of three Companies and the said Writ may be considered closed/disposed of. 7. Considering the submissions of both the parties, the documents, affidavits, orders of the Hon ble NCLAT and the Hon ble Supreme Court made available, we do not find any reason to entertain this IA. Hence, this IA is not entertained and stands disposed of with the following observations. 8. The Hon ble NCLAT has set aside the impugned order of this Bench and remanded back the matter to this Bench to pass an order afresh after providing an opportunity to the opposite party. Hence it is taken on record that the CIRP has been set aside and the Management of the Company has been handed over back to the erstwhile Management by the IRP on 20/06/2020. 9. It is also further taken on record that the IRP has been discharged from his assignment w. e. f. 20/06/2020 and the issue of his fees and payment of CIRP cost have been amicably settled between the IRP and FC. 10. Though the CIRP has been set aside but the Application filed by the FC before this Bench under Sect ..... 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