TMI Blog2022 (12) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion of 30 days and in the said situation, the COC through its resolution had required the RP to approach the adjudicating authority for extension of the CIRP process by another 30 days. It is stated that the provisions in the resolution plan are being projected to be a part of the resolution proceeding to put the corporate debtor back on its feet. A reading of the afore-extracted portion of the resolution plan makes it discernible that the resolution plan is more of corporate takeover by means of lease/rent of the corporate debtor rather than it being a plan to bring the corporate debtor back to its feet. Taking over a corporate management under the law is governed by a different set of provision and it cannot per-se be said to be a part of a resolution plan to bring the corporate debtor back to its feet - as the reading of the resolution plan produced before the Court does not make it discernible that it is a resolution plan to bring the corporate debtor back to its feet, it cannot be accepted. A reading of section 60(5) makes it discernible that it is a provision with a non-obstante clause that notwithstanding anything contrary contained in any other law gives a jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S J Road at Athgaon in Guwahati. Both the petitioners are unsecured financial creditors of the Corporate Debtor RSH Agro Products Limited. 3. At the instance of the Corporate Debtor RSH Agro Products Limited, an insolvency proceeding was initiated under Section 10 of the Insolvency and Bankruptcy Code, 2016 (in short IBC of 2016) before the National Company Law Tribunal (in short NCLT) at Guwahati, resulting in the registration C.P.(IB) No. 18/GB/2021, on the following grounds, as indicated in paragraph 5 of the writ petition : Non-disbursement of sanctioned limits for the refinery project. Interest Loss. Fixed expenditure in Unit-II. Large quantity of raw materials purchased in anticipation of refinery completion. Constraint on Profitability faced due to lack of adequate need based Working Capital. Continuous losses since FY 2018-19 Restrictions on import of Refined Palm Oil. 4. In course of the proceeding before the NCLT Guwahati Bench, as per the order dated 11.02.2022 in IA (IBC)/07/GB/2022, the respondent no. 1 (in short R1) Purshottam Gaggar was appointed as the Resolution Professional (in short RP) for the Corporate Debtor. In co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw inasmuch as although Section 60(5) of the IBC of 2016 can be invoked notwithstanding the provisions in any other law, but Section 60 (5) of the IBC of 2016 cannot be invoked against the provisions of any of the provisions of IBC of 2016 itself. 9. A contention is also raised that the reasons for granting the subsequent extension as provided in the impugned order dated 25.08.2022, that it was based on a resolution approved by 87.26% of the members of the COC for extension of the CIRP, would also be untenable under the law. 10. Mr. S. Chamaria, learned counsel for the R1-RP by referring to the provisions of the second proviso to Section 12 of the IBC of 2016 submits that the law allows a period of 330 days to the RP, from the date of commencement of the CIRP, to complete the insolvency proceeding. Accordingly, the contention raised by Mr. S. Chamaria, learned counsel for the R1-RP is that in the instant case, the period granted to the RP to complete the CIRP was 270 days, including the extension of 90 days, and therefore, as under the law there is still a balance of 60 days the subsequent extension was also within the permissible limits of the law. To substantiate the said s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al submissions made, a question for determination would be whether upon an insolvency resolution proceeding being not completed within the period granted which also includes an extension, whether a subsequent extension would be permissible under the law. Further questions for determination would be whether the non-obstante provision in Section 60 (5) also includes the other provisions of the IBC of 2016 and whether irrespective of the provisions of the IBC of 2016 a subsequent extension can be granted on a resolution of approval by a majority of the members of the COC. 15. The first proviso to Section 12 of the IBC of 2016 provides in clear and unambiguous terms that any extension of the period of CIRP shall not be granted more than once. The expression shall not be granted more than once is structured in a negative language to the effect that no extensions are permissible under the first proviso after the first extension being granted. 16. Interpretation of the expression shall not be granted more than once under the law, would have to be interpreted to mean that irrespective of any circumstance that may be put forward, the law prohibits that whatever is sought to be gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on process under this section shall not be granted more than once. [Provided further that the corporate insolvency resolution process shall mandatorily be completed within a period of three hundred and thirty days from the insolvency commencement date, including any extension of the period of corporate insolvency resolution process granted under this section and the time taken in legal proceedings in relation to such resolution process of the corporate debtor: Provided also 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] 18. A reading of the first proviso to Section 12 makes it explicit and unambiguous that no extension can be granted to complete the CIRP beyond the first extension that may have been granted. But Mr. S Chamaria, learned counsel for the R1-RP refers to Section 12 (3) of the IBC of 2016 which provides that if the adjudicating authority is satisfied that the subject matter of the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso is explicit and unambiguous with the expression shall not be granted more than once to mean that no extension beyond once would be permissible. The second proviso provides that the CIRP is to be completed mandatorily within a period of 330 days including any extension. A conjoint reading of the first proviso and the second proviso does not make it discernible or enables the Court to read between the lines that the provisions that the CIRP would mandatorily have to be completed within a maximum period of 330 days has diluted the provisions of the first proviso in any manner, which otherwise is explicit and unambiguous that no extension beyond once would be granted. The second proviso merely provides that whatever extension would be permissible under the law including the extended period shall mandatorily not be beyond 330 days and it cannot be construed that the second proviso would dilute the provisions of the first proviso in any manner and allow the RP to avail the total of 330 days by taking recourse to successive extensions beyond the first extension to reach 330 days. 24. The principle of interpretation is that the proviso is normally in the nature of a qualificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19, the said provision cannot be made applicable to a situation where the present proceeding have been initiated after the commencement of the IBC (Amendment) Act, 2019. The third proviso is not a proviso perennial in nature which would have its effect at all point of time beyond the date of the commencement of the IBC (Amendment) Act, 2019. Any interpretation to the contrary would again render the first proviso to be redundant and otiose, hence, would have been unacceptable in law. 28. Mr. KN Choudhury, learned senior counsel also appearing for the R1-RP refers to paragraph 127 of the judgment of the Supreme Court rendered in Essar Steel India Ltd (supra) , wherein it was provided that ordinarily the word mandatorily appearing in the second proviso to Section 12 was held to be arbitrary under Article 14 of the Constitution of India being excessive, arbitrary and therefore, to be an unreasonable restriction under Article 19(1)(g) of the Constitution of India, and that the effect of the declaration is that ordinarily the time taken in relation to the CIRP of the corporate debtor must be completed within the outer limit of 330 days from the insolvency commencement date, includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving 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 litigant's 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 the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation and that the time taken in legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority and/or Appellate Tribunal, the delay or a large part thereof bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP called that the revised resolution plans submitted by both the resolution applicants were circulated to all the participants of the meeting. The RP asked the CoC members if they want to have further discussion on the plan or if the discussions are concluded the plans can be put for voting by the CoC members. The representative of PNB stated that they need some more time for taking decisions on the resolution plans. As there are various issues related to the land of the CD, the issues are being considered and the bank is taking legal opinion on the matter. Moreover, the decision on the approval of the plan shall be taken by the head office through the concerned committee authorised for taking such decisions. The RP stated further time cannot be allowed as CIRP period will be over by 20.08.2022. However, the bank insisted the RP to make an application to adjudicating authority requesting for further extension of 30 days, within which they are expecting to come up with a decision on the approval of the resolution plans. The RP clarified that CIRP period has already been extended by 90 days and as per the IBC code, onetime extension for a period not extending 90 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Management shall define organisation structure, policies, procedures, records and methods of reporting that are necessary to collectively ensure that the financial and non-financial operations of the Corporate Debtor is conducted in an orderly and efficient manner to achieve the Corporate Debtor s objectives. (ii) Assessing and containing the risks faced by the Corporate Debtor to acceptable level. (iii) Preventing and correcting irregularities. (iv) Safeguarding assets against the loss/misuse. (v) Ensuring financial and other records are complete in all respects and accurately and reliably reflect the conduct of the Corporate Debtor. (vi) Preventing the misuse or appropriation of resources. (vii) Resources are acquired economically and employed sufficiently, qualify business processes and continuous improvement are emphasised. (viii) The actions of all officers of the Corporate Debtor including Directors, Key Managerial Personnel, Senior Management and Staff are in compliance with the Corporate Debtor s policies standard compliance and procedures and also relevant laws and regulations. (ix) These systems are not only related to accountin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to bring the corporate debtor back to its feet. All that the resolution plan placed before the Court indicates is that it is an attempt by another entity to take over the corporate debtor in the form of a lease/rent without there being any indication that only a short period is left for completion of the CIRP process. 37. A further issue is raised is that the application made by the R1-RP before the NCLT was under section 60(5) of the IBC of 2016. Section 60(5) of the IBC of 2016 is extracted below:- Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of- (a) any application or proceeding by or against the corporate debtor or corporate person; (b) any claim made by or against the corporate debtor or corporate person including claims by or against any of its subsidiaries situated in India; and (c) any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code. 38. A reading of section 60( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court is extracted:- The submission of learned counsel for the appellants in this connection was to the effect that any other law as provided in Section 25-J(1) would include even the Industrial Disputes Act, specially the provisions contained that the provision of Chapter V-A shall have effect notwithstanding anything inconsistent contained in any other chapter of the Industrial Disputes Act as well as in any other law. 41. Accordingly, section 60(5) of the IBC of 2016 would now have to be understood that an application under section 60 (5) to be maintainable notwithstanding anything contained in any other law would not also mean notwithstanding anything contained in the other provisions of the IBC of 2016 itself, but any other law other than the IBC of 2016. From such point of view when there is a specific provision on the question of maintainability of a claim for subsequent extension under the first proviso to section 12, we are of the view that the provisions of section 60(5) cannot be invoked to take advantage of the non-obstante clause to make an application for subsequent extension maintainable in spite of the specific bar on its maintainability provided in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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