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Smart Summary

Factual and Procedural Background

The Applicant, Shri Pradeep Kumar Goenka, was appointed as the Interim Resolution Professional (IRP) by the Adjudicating Authority on 12.02.2020 in the Corporate Insolvency Resolution Process (CIRP) initiated against Agnipa Energo Pvt. Ltd. The initiation of CIRP followed a petition filed by the Financial Creditor, Bank of India, under Section 7 of the Insolvency and Bankruptcy Code, 2016 ("Code"). The Public Announcement was made on 14.02.2020, fixing 26.02.2020 as the last date for claims. Only one Financial Creditor formed the Committee of Creditors (COC) with 100% voting share. The first COC meeting was held on 17.03.2020, wherein the Applicant was approved as the Resolution Professional (RP) for the remaining period of CIRP. However, the appointment could not be recorded due to the nationwide lockdown imposed from 25.03.2020, which prevented any hearing thereafter. The lockdowns imposed by the Central Government and the Governments of West Bengal and Assam extended through various dates up to 31.08.2020, with multiple extensions and restrictions affecting the ability to proceed with the CIRP.

Legal Issues Presented

  1. Whether the period of lockdown imposed due to the COVID-19 pandemic should be excluded from the timeline prescribed under Section 12 of the Insolvency and Bankruptcy Code, 2016 for completion of the CIRP.
  2. Whether the Adjudicating Authority should grant directions to exclude the 160 days from 25.03.2020 to 31.08.2020 from the CIRP timeline due to the lockdowns imposed by Central and State Governments.
  3. Whether any future extensions of lockdown by the Central or State Governments should also be excluded from the CIRP timeline.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Suo Moto - Company Appeal (AT) (Insolvency) No.1 of 2020 (NCLAT order dated 30.03.2020) Exclusion of lockdown period from the timeline for Resolution Process under Section 12 of the Insolvency and Bankruptcy Code, 2016. The Court relied on this precedent to hold that the lockdown period ordered by Central and State Governments shall be excluded for counting the CIRP timeline, recognizing the exceptional circumstances caused by the COVID-19 pandemic.

Court's Reasoning and Analysis

The Court acknowledged the unprecedented disruption caused by the COVID-19 pandemic and the resultant lockdowns imposed by the Central Government and the States of West Bengal and Assam. It recognized that the lockdown period from 25.03.2020 to 31.08.2020, spanning 160 days, rendered the CIRP process ineffective due to the inability to hold hearings or make material progress. The Court accepted the principle established by the NCLAT in Suo Moto - Company Appeal (AT) (Insolvency) No.1 of 2020, which excluded the lockdown period from the CIRP timeline under Section 12 of the Code. Applying this principle, the Court allowed the exclusion of the said 160 days from the CIRP timeline to avoid prejudice to the resolution process and to maintain its efficacy. The Court further directed that any future extensions of lockdown by the Central or relevant State Governments should also be excluded from the CIRP timeline.

Holding and Implications

DISPOSED OF

The Court allowed the Applicant's prayer to exclude 160 days (from 25.03.2020 to 31.08.2020) from the CIRP timeline due to the COVID-19 lockdowns. The appointment of Shri Pradeep Kumar Goenka as the Resolution Professional is hereby recorded. The Resolution Professional is directed to complete the CIRP within the extended timeline. The Court further permitted exclusion of any additional lockdown periods if extended by the Central or State Governments. This decision directly affects the parties by extending the CIRP timeline to ensure the process is not unfairly prejudiced due to the pandemic-related disruptions. No new precedent beyond the application of the NCLAT's prior ruling was established.

To access the original judgment, please Sign In or Subscribe.

    Bank of India v. Agnipa Energo Pvt. Ltd.

    [Per se: Shri Prasanta Kumar Mohanty, Member (T)]

    1. The Applicant herein was appointed as the Interim Resolution prof.rrionut ("IRP") by this Adjudicating Authority on 72.02.2020. Subsequently, the Applicant was approved as the Resolution Professional of the Corporate Debtor in the 1st Committee of Creditors ("COC") meeting held on 17.03.2020, However, the said appointment could not be recorded by this Adjudicating Authority as no hearing was held subsequent to the said COC meeting due to Nationwide Lockdown announced from 2s.03.2020.

    2. The facts in brief, relating to this IA No.59 of 2020 are that the main petition being CP (IBI) No.37lGB/2019 has been filed by the Financial Creditor i.e. Bank of India under Section 7 of the I & B Code, 2016 read with Rule 4 of the Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rules, 2016 for initiating CIRP in the matter of Agnipa Energo Pvt. Ltd. claiming dues owed to the said FC by the CD, 3, The said petition was heard by this Bench and upon hearing this Aench was pleased to pass an order initiating CIRP in the matter of Agnipa Energo Pvt. Ltd. vide Order dated 12.02.2020 by appointing the applicant in this IA i.e. Pradeep Kumar Goenka as the Interim Resolution Professional.

    4. It is stated that Public Announcement i,e. Form A was published on 14.02.2020 in the Times of India (English Daily) and the Amor Asom (Vernacular Daily) flxing 26.02.2020 as the last date for receiving from the concerned creditors. After verification and collation of claims the Applicant herein constituted the Committee of Creditors, wherein only one Financial Creditor is the member of the COC having 100% voting share,

    5. It is further stated that the 1st meeting of the COC was held on L7.03.2020 and resolved to appoint the Applicant herein as the Resolution Professional for the remaining period of the CIRP. However, the said appointment is yet to be recorded by this Bench as no hearing was held subsequent to the said COC meeting due to Nationwide Lockdown announced from 25.03.2020.

    6. It is also stated that the Central Government announced limited ,.ta"ations from 01.06.2020 vide MHA Order No.40-312020-DM-I(A) dated 30.05,2020, but however, in terms of the said MHA order the Government of West Bengal had extended Lockdown in various zones with effect from 0L.06.2020 till 15.06.2020 vide Memo Nos. 218-C512020 dated 30.05,2020 and further till 30,06.2020 vide Memo No.232-CS 12020 dated 08.06.2020, The Lockdown was further extended by the West Bengal Government till 3t.07.2020 vide Memo No.272-CS12020 and till 31.08.2020 vide Memo No. 285-C512020 dated 30.07.2020 in various zones/ wherein mandatory state-wide Lockdown was also observed on Six different dates in the month of August, 2020. Copies of the aforesaid Memos are also annexed with this application marked as fetters "D1", "D2", "D3" and "D4" respectively.

    7. It is further stated that the Government of Assam announced total Lockdown in various zones in Assam vide Notifications ASDMA 2412020lPart-U3 and ASDMA 24l2O2OlPart-L176 ill 12.07.2020 and further Lockdown was extended till 31.08,2020 vide Notification Nos. ASDMA. 24lPart-7189, ASDMA. 24l2020lPart-U92, ASDMA.2412020lPart-I196 and ASDM A.2412020lPar|-U9B in various zones, Copies of the Lockdown Notifications by the Government of Assam are annexed with the application marked as annexures "El", "E2", "E3", "E4", "E5" and "E6" respectively' B. The Applicant submits that the Applicant is constrained to file the present application seeking appropriate directions and orders from the Adjudicating Authority for exclusion of 160 days from the timeline/time period contemplated under Section t2 of the Insolvency & Bankruptcy Code, 2016 ("Code"). The same is necessitated on account of the lockdown imposed due to the ongoing Covid 19 Pandemic.

    9. It is submitted that while the nationwide lockdown was lifted on 01.06,2020, various states/districts extended the lockdown and/or continued to impose lockdown on different dates and for different duration. Thus, the dates on which lockdown in various states and districts (as are relevant to the present CIRP) continued to be in effect also ought to be excluded from the days available for the resolution process. 10, Pertinently, the Hon'ble National Company Law Tribunal (NCLAT), while taking suo-moto cognizance of the unprecedented situation arising out of the Covil-l9 Pandemic, in Suo Moto - Company Appeal (AT) (Insolvency) No.1 of 2020 has categorically held vide its order dated 30.03.2020 that the period of lockdown imposed by the Central and State Government should be excluded for the purpose of counting of the period for "Resolution Process" under Section 12 of the Code, The relevant extract of the Order is being reproduced below for ease of reference: "..... That the period of lockdown ordered by the Central Government and the State Government lncluding the period may be extended either in whole or part of the country where in whole or part of the country, where the registered office of the Corporate Debtor may be located, shall be excluded for the purpose of counting of the period for "Resolution Process under Section 12 of the Insolvency and Bankruptcy Code, 2016, rn all cases where "Corporate Insolvency Resolution Process" has been initiated and pending before any bench of the National Company Law Tribunal or in appeal before the Appellate Tribunal .....'

    11. It is also fufther submitted that due to the COVID-19 Pandemic and the resultant Lockdown, no material progress was possible in the instant CIRP process and unless the period from 25,03.2020 till 31.08.2020 [160 days] rendered utilizable is excluded from the CIRP process shall be severely prejudiced and rendered inefflcient and ineffective.

    72. As per the Applicant, 160 days are the number of days during which no material progress was possible in the CIRP as the said period remained unutilized for that purpose due to the lockdown continued to be imposed in the state of Assam & West Bengal,

    13. In view of the above facts, the Applicant / Resolution Professional of the Corporate Debtor made the following prayers:-

    a) Issue necessary orders / directions confirming exclusion of a period of

    160 days i,e, from 25.03.2020 till 31.08.2020 from the CIRP period of Agnipa Energo Pvt. Ltd.

    b) Issue necessary orders / directions confirming the exclusion of any fufther period of lockdown, from the CIRP period, if the Government of India (Central) or the Government of Assam (State) or the Government of West Bengal, decide to extend the lockdown any further.

    14. This IA has been filed, as approved by the COC, before this Adjudicating Authority on 29.09.2020 and the prayer made in this IA for exclusion of 160 days from the timeline of Resolution Process on account of Lockdown / Shutdown due to the ongoing Covid-19 Pandemic is accepted and exclusion of 160 days period from the timeline of Resolution Process is allowed as prayed for, The appointment of IRP Shri Pradeep Kumar Goenka as RP is hereby recorded. The RP is directed to complete the CIRP in time.

    15. Hence, this IA is disposed of with the aforesaid observations. -sJ - (Prasanta Kumar Mohanty) (H. V. Subba Rao) Member (Technical) Member (Judicial) & Adjudicating Authority & Adjudicating Authority /lleFa- oT,tz.zozo/

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    Bank of India v. Agnipa Energo Pvt. Ltd.
    (Dec 7, 2020)