9911796707
TMI Blog2022 (4) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench) in I.A. No. 922/KB/2021 in CP (IB) No. 159/KB/2019, whereby the Adjudicating Authority has, inter alia, directed the Resolution Professional (in short 'RP') to complete the process of voting on the resolution plan under consideration before 22.12.2021 on the basis of the Committee of Creditors ('CoC' in short) as it exists on 14.12.2021. 2. The Appellant has stated that the Adjudicating Authority has passed the impugned order for completing the process of voting on the resolution plan in I.A. No. 922/KB/2021 without deciding the application bearing I.A. (IB) No. 1078/KB/2021 filed by the Appellant, inter alia, praying for acceptance of its claim against the Corporate Debtor 'M/s. Zenith Finesse India Private Limited', because the acceptance of the claim would change the composition/voting share in the CoC. Aggrieved by the said order which affects its rights in the Corporate Insolvency Resolution Process (in short 'CIRP'), the Appellant has filed this appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (in short 'IBC'). 3. In brief, the facts of the case as stated by the Appellant are tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by CoC. 5. We heard the arguments of all the parties in the appeal and also perused the record. 6. The Ld. Counsel for the Appellant has argued that a claim was filed by the United Bank of India (which was later merged into PNB) on 08.03.2020 which was rejected vide reply dated 18.03.2021 (at pg. 32 of the Appeal Paper Book) on the ground that it was filed after a period of 90 days from the date of initiation of CIRP. He has further stated that thereafter the Appellant/PNB filed I.A. No. 391 of 2021 to seek condonation of delay which was approved by the Adjudicating Authority vide order dated 08.04.2021 (attached at pp. 25-26 of the Appeal Paper Book). Thereafter, on receipt of email dated 10.04.2021 from the RP asking the Appellant to submit proof of its claim, the Appellant submitted the requisite documents vide email dated 20.04.2021. Since the maximum period of CIRP of 270 days had expired on 12.04.2021 RP rejected the claim of the Appellant. He has further stated that in the meanwhile the Adjudicating Authority passed order dated 27.10.2021 in I.A No. 918/KB/2021 and I.A. No. 922/KB/2021 (attached at pp. 27-28 of Appeal Paper Book) whereby the Adjudicating Authority dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proof of Appellant's claim for verification. He has further added that since the Appellant submitted documents of proof on 20.04.2021 and the period of 270 days had expired on 12.04.2021, the RP could not consider the said documents submitted by the Appellant. Moreover, since the Appellant had filed I.A. No. 1078 of 2021 before the Adjudicating Authority seeking direction to the RP to verify his claim, he was awaiting the order of the Adjudicating Authority so that he could fairly consider the proof of claim submitted by the Appellant. In the meanwhile, since the Adjudicating Authority passed an order on 27.10.2021 (In I.A No. 918/KB/2021 and I.A. No. 922/KB/2021), he was duty bound to comply with the said order and in accordance with the said order he put up for consideration the resolution plan submitted by the prospective resolution applicant' (Respondent No. 2) before the CoC. Thereafter, on the decision of the CoC in its meeting on 20.12.2021 considered the resolution plan submitted by Loka Properties Pvt. Ltd. and approved it after completion of voting on 22.12.2021 which is recorded in the minutes of the 20th meeting of the CoC. The RP thereafter, in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established legal principle that what act cannot be done directly cannot be done indirectly. He has cited the judgment of Hon'ble Supreme Court in the matter of Edukanti Kistamma (Dead) through LRs Vs. S. Venkatareddy (Dead) through LRs, [(2010) 1 SCC 756] in this regard to emphasise the point that once order dated 27.10.2021 has achieved finality the consequent order dated 14.12.2021 cannot be challenged. He has, hence, requested that the impugned order need not be interfered with and the process of insolvency resolution of the Corporate Debtor should be completed in accordance with the orders of the Adjudicating Authority. 11. We reproduce below a list of dates that would be useful in this judgment and will be relevant while discussing the chain of events:- S. No. Actives Date Reference 1. CIRP Initiated on 20.11.2019 Pg. 7 of the appeal paper book 2. Public announcement on 25.11.2019 Pg. 7 of the appeal paper book 3. 90 days for submitting claim over on 29.12.2020 Pg. 5 of the Reply filed by the RP 4. Claim filed by United Bank of India (merged in PNB later) 08.03.2020 Pg. 7 of the appeal paper book 5. Reply of RP rejecting the claim 18.03.2021 Pg. 8/32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority in vide impugned order dated 14.12.2021 recognised the fact that an application was filed by PNB regarding condoning delay in submission of proof of its claim as is evident in Para 7 (c) of the impugned order reproduced above, and ordered that the CoC, as it existed on 14.12.2021, shall consider the resolution plan of Loka Properties Pvt. Ltd. We, therefore, feel there is sufficient reason for the Appellant/PNB to be aggrieved since it had prayed for a position in the CoC with a higher voting share and carrying out of voting without deciding its IA No. 1078/2021 affects its interest. Therefore, it is well within its right to assail the impugned order through the present appeal. We are also of the view that even though the order of the Adjudicating Authority dated 27.10.2021 (which had stated that the plan filed by the prospective resolution applicant should be considered by the CoC) was not assailed and hence the order dated 14.12.2021 cannot be challenged does not preclude the Appellant from challenging the order dated 14.12.2021 as the consideration of resolution plan by CoC without according Appellant a revised voting share is a valid ground for the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was no consensus amongst the members of the CoC for taking further exclusion or extension of the CIRP period, and additionally a resolution plan was under consideration of the CoC vide Adjudicating Authority's order dated 27.10.2021, the application for liquidation was disposed of as 'not pressed'. Thereafter, the Adjudicating Authority considered I.A. No. 922/KB/2021 filed by the one Loka Properties Pvt. Ltd., whose resolution plan was receiving consideration by the CoC, and proceeds to pass an order which can be seen in Paragraph 7(d) of the impugned order, whereby a total exclusion of 245 days has been given in the CIRP period. The relevant extract of the Impugned Order (attached at pp. 29 - 31 of the Intervention Application of SBI) in Paragraph 7 (d) allow exclusion as follows: - "7(d). The period of 104 days between 24.11.2020 and 08.03.2021, which is time a spent in finally determining the application filed by the SBI for consideration of its claim by the Adjudicating Authority and by the Hon'ble NCLAT shall stand excluded from the CIRP time frame. Further exclusion of 77 days due to second wave of Covid-19 between 13.04.2021 and 30.06.2021 shall also be excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that where the insolvency resolution process of a corporate debtor is pending and has not been completed within the period referred to in the second proviso, such resolution process shall be completed within a period of ninety days from the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2019." 19. Further, Regulations 12 and 12-A of the CIRP Regulations, which relate to submission of proof of claims and updation of claim respectively, are as follows: - "12. Submission of proof of claims.- (1) Subject to sub-regulation (2), a creditor shall submit claim with proof on or before the last date mentioned in the public announcement. (2) A creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof to the interim resolution professional or the resolution professional, as the case may be, on or before the ninetieth day of the insolvency commencement date. (3) Where the creditor in sub-regulation (2) is a financial creditor under regulation 8, it shall be included in the committee from the date of admission of such claim: Provided that such inclusion shall not affect the validi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Purple Advertising. Thereafter, on receiving no positive reply, PNB filed another I.A No. 1078 of 2021 on 13.12.2021 for condoning of delay in submission of claim. The Adjudicating Authority vide its order dated 14.12.2021 in I.A. No. 912/2021 and I.A. No. 988/2021 excluded a total time period of 245 days from the CIRP period, which included a time period of 104 days which was spent by Intervenor/SBI in litigation in pursuance of its claim. Thus, while the Adjudicating Authority for achieving the aims and objectives of the IBC for successful resolution of the corporate debtor, proceeds to pass order for exclusion a total time period of 245 days from the CIRP period, it is not clear why it could not consider I.A. No. 1078 of 2021 filed by PNB regarding condonation of delay in submission of documents. What is more surprising is that the Adjudicating Authority in Para 7(c) of its order dated 14.12.2021 records as follows which shows that it was aware that the said application of PNB was pending for consideration :- "7(c). We wish to make it clear that the CoC as existing today (14.12.2021) shall consider the resolution plan in respective of the fate of the application filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the light of Adjudicating Authority's order dated 14.12.2021 by which an exclusion of 245 days from the CIRP period, which is not on the application of CoC or RP but of the prospective resolution applicant. We feel that, in view of the fact that the exclusion of 245 days has been granted in the CIRP period, the benefit of condonation of delay should also be available to the Appellant/PNB. 27. On the basis of the above discussion, we are of the view that the delay in submission of proof of PNB's claim should be condoned. We, therefore, condone the delay which was prayed by the Appellant/PNB vide IA No. 1078/2021. We further direct the RP to consider the documents submitted by the Appellant/PNB as proof of its claim and revise its claim if the documents have merit. This action may be completed within the period of fifteen days from the date of this judgment. The CoC should, thereafter, consider the revised claim of PNB, if any, for payment through the resolution plan by the Successful Resolution Applicant and obtain necessary approval. The resolution plan would thus stand revised only in so far as the revised claim (if any) of the Appellant/PNB is concerned. This entire exercise, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
