1. The present case is taken-up for pronouncement of order in respect of IA 184 of 2018 in CP (IB) 46 of 2017, wherein arguments of Learned Counsel for the applicant were heard on 04.06.2018 with giving liberty to file written submission in support of their oral contentions.
2. The present IA is filed by the Applicant Resolution Professional seeking for certain reliefs those are stated in para-26 of the Application, hence, the same are reproduced herein below:—
a) This Bench may be pleased to allow the present application;
b) This Bench may be pleased to pass an appropriate order under Section 12 read with Section (5) of the Code read with Section 15 of the Limitation Act, 1963 read with Rule 11, 15, 51 and 153 of the NCLT Rules for exclusion of standstill period of 118 days falling between 19.09.2017 to 15.01.2018 should not counted for any purpose and therefore has to be excluded from total period (270 days) of the C.I.R.P.;
3. The present application, is filed under Section-12 & 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11, 15, 51 & 153 of the NCLT Rules, and also with Regulation-40 of the Insolvency and Bankruptcy Board of India as well as Section-15(1) of the Limitation Act with such prayer to provide clarification with regard to exclusion of standstill period (i.e. from 19.09.2017 to 15.01.2018 - totalling 118 days) from the Corporate Insolvency Resolution Process (CIRP) period of 270 days, because there was stay of the proceedings of CIRP because of an order from a Competent Court of Law i.e. the Hon'ble High Court of Gujarat which passed an order dated 06.0.07.2017 in Company Petition No. 436 and 437 by ordering for winding up of the Respondent Company (present Corporate Debtor). Later on, the Hon'ble High Court, was further pleased to re-call the said winding up order by its subsequent order dated 24.11.2017 and directed the Registry to place the main matter before the appropriate bench.
4. For the sake of convenience, the relevant portion of the order dated 24.11.2017 can be re-produced herein below:
“3. The record indicates that by an order dated 06.07.2017, this Court had allowed Company Petition No. 436/15 and passed the following order of winding up of the opponent company—
“8. Learned counsel for the petitioner contended that even though repeated reminders were given and even statutory notice came to be issued to the respondent-therefore, contended that the respondent - Company is not a going concern and is unable to pay its debt and has lost its financial substratum and therefor, this Court may allow the petition and pass the order of winding up of the respondent - Company, as prayed for in the petition.
9. Considering the aforesaid aspect and on examining the record, it clearly transpires that though several reminders were given and even statutory notice has been issued to the Respondent-Company, the Respondent-Company has neglected to pay the same and has not even responded to the statutory notice issued by the petitioner and therefore, the Respondent-Company has lost its financial substratum and it has become commercially insolvent. Hence, it would be just and proper to direct that the Respondent-Company Mekaster Engineering Ltd., is hereby ordered to be wound up. The Official Liquidator attached to this Court is hereby appointed as Official Liquidator of the Respondent-Company and the Official Liquidator is directed to take over the possession of the entire assets of the Respondent-Company, i.e. movable, immovable as well as Bank Accounts, etc. The Official Liquidator is further directed to do the needful for winding up of the Respondent-Company as proved under the Act and shall submit necessary report before this Court”.
4. As stated in the application and also submitted by both the learned counsels, after the order dated 06.07.2017, the parties have amicably resolved the issue. Hence, the order dated 06.07.2017 is recalled. The Registry is directed to place the main matter before the appropriate bench.
5. Application is disposed of accordingly.
6. In the light of the aforesaid order, it is the submitted by the Resolution Professional that although this Tribunal, vide its order dated 04.08.2017 has, admitted the IB Petition under the IBC Code by appointing the Interim Resolution Professional (IRP) and Resolution Professional (RP), they could not proceed further with the Corporate Interim Resolution Process. As in the very first meeting of the Committee of Creditors (CoC) held on 19.09.2017. It was brought in his notice by a representative of the secured creditors that they are in receipt of a notice dated 12.06.2017, from the Official Liquidator, in pursuant to the aforesaid order passed by the Hon'ble High Court of Gujarat and the status of the Corporate Debtor Company at that time was under liquidation. Hence, no progress could be made. Since the Hon'ble High Court of Gujarat later on pleased to recall its winding up order on 24.11.2017, the RP and CoC could able to proceed with CIRP after receipt of a copy of Hon'ble High Court's subsequent order dated 24.11.2018, i.e. by re-calling of the winding up order.
7. In pursuance thereof this Adjudicating Authority passed an order in IA No. 323/2017 on 15.01.2018 clarified that in view of Hon'ble High Court has recalled its order dated 06.07.2017, there is no impediment to the IRP to proceed.
8. In view of the above, the R.P. has prayed for exclusion of such period for counting of period of the C.I.R.P. In support of this, contentions of its contention the applicant/Ld. Counsel also placed reliance of following judgments:—
i) Judgment of Hon'ble NCLAT, in the matter of Quantum Limited v. Indus Finance Corporation Limited [Company Appeal (AT)(Insolvency) 35 of 2018], it is clarified the period of 180 days and the date of passing of the order in the appeal should not be counted for any purpose.
ii) Judgment of Hon'ble NCLT, Principal Bench, in the matter of Punjab National Bank v. Bhushan and Steel Limited (IB) - 202 (PB)/2017, it has taken a view that the time consumed in the litigation would not prima facie be part of the period prescribed for CIRP under the code.
iii) Further judgment of Hon'ble NCLT, Hyderabad, in the mater of Deccan Chronicle Holdings Limited CA No. 69 & 70 of 2018 in CP (IB) No. 41/7/HDB/2017, it has pleased to exclude period of 87 days due to change in IRP, for counting of CIRP period of 270 days.
9. On a similar footing, this Bench also in the matter of Numetal Limited v. Satish Kumar Gupta RP IA 98/2018 in CP (IB) No. 40/7/NCLT/AHM/2017, has also taken such view that time consumed in the pending application before this Bench has to be excluded from the prescribed period of the CIRP to 270 days.
10. We are duly considered the submission made by the Counsel for the applicant and also perused the available material in IA and written argument.
11. We are of the considered view that since in the RP and CoC could not able to proceed in respect of the CIRP due to winding up order dated 06.07.2017 passed by the Hon'ble High Court of Gujarat in respect of the Corporate Debtor was in force and which was re-called by its order dated 24.11.2017.
12. Hence, in the light of above stated judicial precedence, the present application deserves to be allowed.
13. Hence, the I.A. is allowed in terms of its prayer clause and it is made clear that the period between 19.09.2017 till 15.01.2018 not to be counted for the purpose of CIRP.
14. Accordingly, IA No. 184 of 2018 stands disposed of.