Alchemist Asset Reconstruction Company Ltd. vs Sapan Mohan Garg

02.02.2023: Heard Mr. Kunal Godhwani, the Learned Counsel appearing for the ‘Appellant’ and Mr. Kanishk Khetan, the Learned Counsel appearing for the ‘Respondent’ / ‘Resolution Professional’, in the instant Comp. App. (AT)(CH)(Ins) No.27/2023, at the ‘Admission’ stage itself.

The ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai), while passing the ‘Impugned Order’ in IA/IBC/1128/CHE/2022 in CP/IB/85/CHE/2021 on 09.01.2023 (filed under Section 60 (5) of the Insolvency & Bankruptcy Code, 2016 read with Rule 11 of the NCLT Rules, 2016) at ‘Paragraph Nos.6 and 7 had among other things observed the following :-

The Learned Counsel for the ‘Appellant’ vehemently contends that the IA/IBC/1128/CHE/2022 in CP/IB/85/CHE/2021, was filed by the ‘Respondent’ / ‘Petitioner’, before the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai), wherein the ‘Petitioner’ / ‘Appellant’ had sought for an ‘Exclusion’ of ‘170 Days’, as mentioned in ‘Para 18’, of the ‘Application’, as enumerated in ‘Para 17’, of the ‘Application’, from the ‘Corporate Insolvency Resolution Process’ (CIRP) to continue up to 16.11.2022.

In this regard, the Learned Counsel for the ‘Appellant’ brings it to the ‘Notice’ of this ‘Tribunal’, that an ‘Additional Affidavit’, was filed by the ‘Respondent’, in compliance to the ‘Order’ dated 04.11.2022, wherein at ‘Paragraph No.8, the ‘Respondent’ / ‘Applicant’, had in addition to the period of ‘170 Days’, prayed for in IA/IBC/1128/CHE/2022 in CP/IB/85/CHE/2021, had sought an ‘Exclusion’ of the ‘Period’ lapsed, in regard to the operation of the ‘Status quo Order’ dated 25.04.2022, from the ‘Corporate Insolvency Resolution Process’ (CIRP), and the break-up of the said particulars is mentioned as below:-

and ultimately, the ‘Respondent’ had sought for an ‘Additional Exclusion’, beyond the period of ’60 Days’, as mentioned in Para ‘8’ for the reasons assigned in Para ‘7’ of the ‘Affidavit’ dated 22.11.2022, from the ‘Corporate Insolvency Resolution Process’ (CIRP) of the ‘Corporate Debtor’, thereby ‘Allowing’ the ‘Corporate Insolvency Resolution Process’ (CIRP) to continue up to 15.01.2023.

The Learned Counsel for the ‘Appellant’ submits that that originally IA/IBC/1128/CHE/2022 in CP/IB/85/CHE/2021 was filed before the ‘Adjudicating Authority’, (‘Tribunal’), by the ‘Respondent’ / ‘Petitioner’ as early as on 12.10.2022, and the matter was pending, before the ‘Adjudicating Authority’, (National Company Law Tribunal, Division Bench – I, Chennai), for quite some time, and finally, the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai), had passed the ‘impugned order’, on 09.01.2023, which was made available on 17.01.2023, and as such, the ‘Appellant’ is dissatisfied with the said ‘impugned order’, passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai), on 09.01.2023, in regard to the completion of the ‘Corporate Insolvency Resolution Process’ (CIRP), and not to seek further time in the ‘Resolution’ of the ‘Corporate Debtor’.

The ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai) had categorically mentioned in the ‘impugned order’ dated 09.01.2023, that the ‘Corporate Insolvency Resolution Process’ (CIRP) of the ‘Corporate Debtor’, was to end on 15.01.2023.

The ‘real grievance’ of the ‘Appellant’ is that the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai), ‘Allowed’ the ‘Application’ of the ‘Resolution Professional’ and granted an ‘Exclusion of Time’ for completion of the ‘Corporate Insolvency Resolution Process’ (CIRP), the ‘Delay’ in ‘Pronouncing’ / ‘Delivering’ the ‘Order’ and ‘Uploading’ of the same, in reality, had taken away the ‘entire period’ of ‘60 Days’ from the ‘Corporate Insolvency Resolution Process’ (CIRP) of the ‘Corporate Debtor’.

Added further, it is projected on the side of the ‘Appellant’ that the ‘present Case’ warrants granting of a period of ‘230 Days’, with effect from the date of ‘setting aside’ of the ‘impugned order’, passed by this ‘Tribunal’, and this ‘Tribunal’ may restrain the ‘Resolution Professional’ from proceeding with its ‘Liquidation Application’, before the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai).

Considering the fact that the ‘averments’ and the ‘Plea’ made in the IA/IBC/1128/CHE/2022 in CP/IB/85/CHE/2021, by the ‘Respondent’ / ‘Resolution Professional’, was not taken into account in a ‘proper’ and ‘real’ perspective by the ‘Adjudicating Authority’, (National Company Law Tribunal, Division Bench – I, Chennai), and also, there is no ‘indication’ in the ‘Impugned Order’, dated 09.01.2023 in IA/IBC/1128/CHE/2022 in CP/IB/85/CHE/2021, as to the fact, that the ‘Additional Affidavit’ filed by the ‘Respondent’ / ‘Petitioner’, therein, was considered in the manner projected from the point of view of the ‘Respondent’ / ‘Resolution Professional’, this ‘Tribunal’, at this stage, simpliciter, without expressing any opinion, on the ‘Merits’ of the matter, and also, not ‘delving in deep’, sets aside the ‘Impugned Order’ dated 09.01.2023 passed in IA/IBC/1128/CHE/2022 in CP/IB/85/CHE/2021, by the ‘Adjudicating Authority’, (National Company Law Tribunal, Division Bench – I, Chennai), in the interest of ‘Justice’, and remits back the matter in IA/IBC/1128/CHE/2022 in CP/IB/85/CHE/2021 to the ‘Adjudicating Authority’, (National Company Law Tribunal, Division Bench – I, Chennai), for passing necessary Orders ‘De Novo’ in the matter, of course, after ‘Hearing’, the ‘Respondent’ / ‘Resolution Professional’, by providing an opportunity of ‘Hearing’, by adhering to the ‘Principles of Natural Justice’, and to pass ‘Just’, ‘Fair’ and the reasoned ‘Speaking Order’, in ‘Qualitative’ and ‘Quantitative’ terms, adverting to the ‘Relief Sought’ for in the ‘Subject Matter’ in issue and this ‘Exercise’, shall be carried out by the ‘Adjudicating Authority’, (National Company Law Tribunal, Division Bench – I, Chennai), within ‘Two Weeks’, from the date of passing of this ‘Order’, of course, uninfluenced, untrammelled with any of the ‘Observations’, made by this ‘Tribunal’.

With the aforesaid ‘observations’ and ‘Directions’, the instant Comp. App. (AT)(CH)(Ins) No.27/2023 is disposed of. No Costs.

Before parting with the Case, ‘Liberty’ is granted to both the ‘Parties’ to raise all ‘Factual’ and ‘Legal Pleas’, before the ‘Adjudicating Authority’, (National Company Law Tribunal, Division Bench – I, Chennai) and also bring it to the ‘Notice’ of the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai), that an ‘Interlocutory Application’ (under Section 33 (1) of the IBC, Code 2016), seeking for ‘Liquidation’, is pending before it, and till the ‘disposal’ of the IA/IBC/1128/CHE/2022 in CP/IB/85/CHE/2021, the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai), shall defer the taking up of the ‘Liquidation Application’ filed by the ‘Resolution Professional’.