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Smart Summary

Summary of the Opinion — Company Appeal (AT) (Insolvency) No. 183 of 2018

Factual and Procedural Background

This appeal was preferred by the Resolution Professional against the Adjudicating Authority's (National Company Law Tribunal, Mumbai Bench) order dated 18 April 2018 in I.A. 24/2018 in C.P. No.1061/2017. The Adjudicating Authority had allowed only 38 days of time consumed in litigation to be excluded from the computation of the total period of the Corporate Insolvency Resolution Process (CIRP).

The Resolution Professional (appellant) and the Committee of Creditors (CoC) requested that at least 55 days be excluded because an interim stay of the CIRP was in place. The Appellate Tribunal considered an earlier, similar decision (Quinn Logistics India Pvt. Ltd. v/s. Mack Soft Tech Pvt. Ltd.) and examined whether the stay period should be excluded from the 270-day limit. The Tribunal heard that the interim stay had been passed on 22.01.2018 and vacated on 19.03.2018, resulting in 55 days during which the CIRP was stayed.

Bench: [Justice S. J. Mukhopadhaya] Chairperson; [Justice Bansi Lal Bhat] Member (Judicial). Date of this appellate order: 09.05.2018.

Legal Issues Presented

  1. Whether the period during which the CIRP was subject to an interim stay should be excluded from the 270-day statutory period for completion of the Corporate Insolvency Resolution Process.
  2. If such exclusion is permissible, whether the Adjudicating Authority erred in excluding only 38 days instead of 55 days requested by the Committee of Creditors/Resolution Professional.

Arguments of the Parties

Appellant's Arguments (Resolution Professional)

  • The Committee of Creditors had decided and requested the Adjudicating Authority to exclude at least 55 days from the 270-day CIRP period because that duration was consumed due to an interim stay passed by the Adjudicating Authority.
  • The Adjudicating Authority noted the stay but allowed only 38 days' exclusion without providing reasons for denying the remaining requested days, despite the 270-day period approaching expiry on 19.04.2018.

The opinion does not provide a detailed account of the opposing party's (if any) specific arguments in response.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Quinn Logistics India Pvt. Ltd. V/s. Mack Soft Tech Pvt. Ltd. in Company Appeal (AT) (Insolvency) No. 185 of 2018 The Appellate Tribunal's observation dated 08.05.2018 listing examples of "good grounds and unforeseen circumstances" where intervening periods may be excluded from the 270-day CIRP computation, including: (i) stays by a court/Adjudicating Authority/Appellate Tribunal/Supreme Court; (ii) absence/removal of the Resolution Professional; (iii) delay between admission/moratorium and the RP taking charge; (iv) periods when orders are reserved and later enable the RP to complete the process; (v) where the CIRP is set aside and later restored; and (vi) any other circumstances justifying exclusion. It also states that after exclusion the total cannot exceed 270 days. The Tribunal relied on these stated grounds to assess whether the 55-day interim stay in the present case qualified for exclusion from the 270-day limit.
Company Appeal (AT) (Insolvency) No. 183 of 2018 Referenced in the opinion in relation to the quoted principles (the opinion reproduces parts of the reasoning associated with this appeal number). The Tribunal directed exclusion of 55 days in the present case and granted an additional 55 days to the Resolution Professional/Committee of Creditors effective 09.05.2018, citing the reasoning reflected in the cited appeal number.

Court's Reasoning and Analysis

The Tribunal began by considering a prior appellate decision that enumerated circumstances where intervening periods could be excluded from the 270-day CIRP limit. Those acceptable circumstances explicitly include stays of the CIRP by courts or tribunals.

Applying that framework to the present facts, the Tribunal found that the CIRP was stayed for 55 days by an interim order passed on 22.01.2018 and that the stay was vacated on 19.03.2018. During that period the Committee of Creditors were reviewing resolution plans submitted by applicants. Given that the stay falls within the types of circumstances identified in the earlier appellate guidance, the Tribunal concluded that the 55-day interim stay period should be excluded when computing the statutory 270-day period.

The Tribunal therefore modified the impugned order to exclude 55 days (rather than the 38 days allowed by the Adjudicating Authority) and provided the Resolution Professional/Committee of Creditors an additional 55 days from 09.05.2018 to complete the CIRP. The Tribunal explicitly stated that this 55-day extension would include time required to pass any order under Section 31 of the Insolvency & Bankruptcy Code, 2016.

Holding and Implications

Core Ruling: The impugned order dated 18.04.2018 is modified to exclude 55 days from the computation of the 270-day Corporate Insolvency Resolution Process; the appeal is disposed of accordingly.

Implications and direct effects:

  • The Adjudicating Authority is directed to exclude 55 days (the period of interim stay from 22.01.2018 to 19.03.2018) when calculating the 270-day CIRP period.
  • The Resolution Professional/Committee of Creditors are granted a further 55 days from 09.05.2018 to complete the Corporate Insolvency Resolution Process; this period includes the time needed to pass orders under Section 31 of the I&B Code, 2016.
  • The impugned NCLT order is modified to this extent; the appeal is disposed of. No costs were awarded.

The opinion applies existing appellate guidance on exclusions; it does not purport to establish a novel legal principle beyond the application of that guidance to the present facts.

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    Rajendra K. Bhuta (R.P.) v. Guruashish Construction Pvt. Ltd. .

    09.05.2018: This appeal has been preferred by Resolution Professional against order dated 18th April, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench in I.A. 24/2018 in C.P. No.1061/2017. Taking into consideration the facts and circumstances of the case, the Adjudicating Authority by the impugned order allowed only 38 days of time consumed in litigation for exclusion of the period from the counting the total period of Corporate Insolvency Resolution Process.

    2. According to Appellant (Resolution Professional), the Committee of Creditors in their meeting decided and to request the Adjudicating Authority to exclude at least 55 days for the purpose of counting total period of Corporate Insolvency Resolution Process. Such time was taken because of the interim order of stay passed by the Adjudicating Authority. The Adjudicating Authority though notice the aforesaid fact at Para 6 of the impugned order but allowed only 38 days time without giving any reason as to why rest of the time has not been allowed when 270 days was to expire on 19.04.2018.

    3. Similar issue fell for consideration before this Appellate Tribunal in Quinn Logistics India Pvt. Ltd. V/s. Mack Soft Tech Pvt. Ltd. in Company Appeal (AT) (Insolvency) No. 185 of 2018. This Appellate Tribunal by judgment dated 08.05.2018 observed and held as follows:

    10. For example, for following good grounds and unforeseen circumstances, the intervening period can be excluded for counting of the total period of 270 days of resolution process:

    (i) If the corporate insolvency resolution process is stayed by a court of law or the Adjudicating Authority or the Appellate Tribunal or the Honble Supreme Court.

    (ii) If no Resolution Professional is functioning for one or other reason during the corporate insolvency resolution process, such as removal.

    (iii) The period between the date of order of admission/moratorium is passed and the actual date on which the Resolution Professional takes charge for completing the corporate insolvency resolution process.

    (iv) On hearing a case, if order is reserved by the Adjudicating Authority or the Appellate Tribunal or the Honble Supreme Court and finally pass order enabling the Resolution Professional to complete the corporate insolvency resolution process. Company Appeal (AT) (Insolvency) No. 183 of 2018

    (v) If the corporate insolvency resolution process is set aside by the Appellate Tribunal or order of the Appellate Tribunal is reversed by the Honble Supreme Court and corporate insolvency resolution process is restored.

    (vi) Any other circumstances which justifies exclusion of certain period. However, after exclusion of the period, if further period is allowed the total number of days cannot exceed 270 days which is the maximum time limit prescribed under the Code.

    4. In the present case, as the Corporate Insolvency Resolution Process remained stayed for 55 days due to interim order passed by the Adjudicating Authority on 22.01.2018, which stood vacated on 19.03.2018, in view of order passed in the appeal, we are of the view that the Committee of Creditors/ Resolution Professional rightly requested the Adjudicating Authority to exclude

    55 days from the total for the purpose of counting the period of 270 days, as the Committee of Creditors were going through the resolution plans submitted by one or other applicant.

    5. In view of aforesaid fact, we direct the Adjudicating Authority to exclude

    55 days for the purpose of counting the period of Corporate Insolvency Resolution Process. Therefore, we allow the Resolution Professional/ Committee of Creditors further 55 days of time with immediate effect i.e. 09.05.2018 to complete the Corporate Insolvency Resolution Process. This 55 days period will include the order as is required to be passed under Section 31 of the I&B Code, 2016. Company Appeal (AT) (Insolvency) No. 183 of 2018

    6. The impugned order dated 18.04.2018 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench in I.A. 24/2018 in C.P. No.1061/2017 stands modified to the above extent. The appeal stands disposed of with aforesaid observations. No costs. [Justice S. J. Mukhopadhaya] Chairperson [Justice Bansi Lal Bhat] Member (Judicial) am/gc Company Appeal (AT) (Insolvency) No. 183 of 2018

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    Comments

    Rajendra K. Bhuta (R.P.) v. Guruashish Construction Pvt. Ltd. .
    (May 9, 2018)