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Judgment
ORDER
11.01.2022: Heard Learned Counsel for the Appellant-Mr. Abhishek Anand and Mr. Sumant Batra-Learned Amicus Curiae.
This Appeal has been filed against the Judgment and order dated 17th March, 2021 in IA/1304/2021 in IB 3042(ND) 2019 passed by Adjudicating Authority (National Company Law Tribunal, New Delhi, Court-II) by which Order the Application filed by the Appellant being I.A. No. 1304 of 2021 praying for exclusion of 17 days time from the CIRP was rejected.
Learned Counsel for the Appellant submits that in the present case by Order dated 12th February, 2021 passed in CP IB No. 3042/ND/2019 the Corporate Insolvency Resolution Process (CIRP in short) was initiated and in Paragraph 22, it was stated by the Adjudicating Authority that since Applicant has not proposed the name of Interim Resolution Professional, we appoint Ms. Sunita Umesh as IRP. After the said order, an Application was filed by the Applicant being I.A. No. 943/2021 seeking modification of the Order dated 12th February, 2021 and it was stated in the application that although in the initial petition no IRP was proposed but after the Order was reserved on 04th January, 2021 an application was filed on 31.01.2021 proposing the name of IRP. The application was heard on 18.01.2021. The name of IRP-Mr. Anil Tayal was prayed in the Application be substituted in the Order dated 12th February, 2021. The Application was allowed by the Adjudicating Authority on 24th February, 2021 by appointing MR. Anil Tayal as IRP in place of Ms. Sunita Umesh who was earlier appointed on 12th February, 2021.The IRP thus, in the present case, due to facts and circumstances, stated above shall be treated to have been appointed only on 24th February, 2021. This information was received by IRP on 1st March, 2021. Hence, the exclusion of period from 12th February, 2021 to 28th February, 2021 was sought for.
We are of the view that there were substantial grounds for granting exclusion, when the IRP who was proposed by the applicant, was appointed on 24th February, 2021 and the information was received by Mr. Anil Tayal on 1st March, 2021, the period from 12th February, 2021 to 28th February, 2021 ought to have been excluded. The Adjudicating Authority committed an error in rejecting the Application.
We are thus of the view that Order of the Adjudicating Authority rejecting the Application deserves to be set aside and the I.A. No. 1304 of 2021 deserves to be allowed.
Before closing we notice the Order passed by this Tribunal on 09.07.2021 appointing Mr. Sumant Batra as Amicus Curiae as under:
"……….. We request Advocate Shri Sumant Batra to assist us as Amicus Curiae. The Appellant will serve copy of Appeal to Learned Amicus Curiae. The Counsel for the Appellant will prepare a chart showing as to what practical difficulties IRP has to face if there is mismatch in the date of appointment of IRP no coinciding with the date of initiation of CIRP. The Counsel for the Appellant will share the same with the Learned Amicus Curiae."
We have heard Mr. Sumant Batra. Mr. Sumant Batra, Amicus Curiae submits that in view of the Amendment which has been made now in Section 16 of the Code by Act No. 1 of 2020 the inconsistency which appeared with regard to appointment of IRP and the date of the Order has no more continuing. In the earlier Section 16 sub-Section 1 the words "within 14 days from the Insolvency Commencement Date" has now been substituted by following:-
“16(1).The Adjudicating Authority shall appoint an interim resolution professional on the insolvency commencement date”.
In view of the above amendment which has been enforced with effect from 28th December, 2019 now there cannot be two date for appointment of IRP. The IRP has to be appointed on the date of Insolvency Commencement Date.
Thus, we see no reason to dwell any further in the matter. In view of the aforesaid observations, we allow this Appeal and set aside the Order dated 17.03.2021 of the Adjudicating Authority and allow the Application i.e. I.A. No. 1304 of 2021 granting exclusion of period from 12th February, 2021 to 28th February, 2021.