2021 (7) TMI 858 - AT - Insolvency and Bankruptcy

Tribunal Upholds Appointment of New Resolution Professional to Resolve Creditor Deadlock

Anil Kumar Ex Interim Resolution Professional (IRP) Of M/s. KSL & Industries Limited Versus Allahabad Bank, M/s. KSL & Industries Ltd., M/s. Charms Holding Pvt. Ltd., M/s. Abhinandan Multitrade Pvt. Ltd., M/s. Anukaran Consultancy Pvt. Ltd.

Anil Kumar Ex Interim Resolution Professional (IRP) Of M/s. KSL & Industries Limited Versus Allahabad Bank, M/s. KSL & Industries Ltd., M/s. Charms ... Issues Involved:1. Validity of invoking Rule 11 of NCLT Rules, 2016.2. Compliance with Sections 22 and 27 of the Insolvency & Bankruptcy Code, 2016 (IBC).3. Appointment and replacement of Interim Resolution Professional (IRP) / Resolution Professional (RP).4. Stalemate between secured and unsecured creditors.5. Progress and conduct of Corporate Insolvency Resolution Process (CIRP).Detailed Analysis:1. Validity of Invoking Rule 11 of NCLT Rules, 2016:The core issue raised by the appellant was whether the inherent powers under Rule 11 of NCLT Rules, 2016 could be invoked to bypass the provisions of Sections 22 and 27 of the IBC. The appellant argued that the Adjudicating Authority's order to appoint a new IRP/RP using Rule 11 was legally unsustainable. The respondent countered by highlighting that Rule 11 provides the Tribunal with inherent powers to make orders necessary for meeting the ends of justice, and the Adjudicating Authority had rightly exercised this power due to the stalemate situation.2. Compliance with Sections 22 and 27 of the Insolvency & Bankruptcy Code, 2016 (IBC):The appellant contended that the Adjudicating Authority failed to exercise the powers under Sections 22 and 27 of the IBC, which govern the appointment and replacement of IRP/RP. Section 22 provides for the appointment of an IRP/RP by the Committee of Creditors (CoC), and Section 27 allows for the replacement of an RP by a vote of 66% of the CoC's voting shares. The Tribunal found that the ingredients of Sections 22 and 27 were not met in this case, justifying the invocation of inherent jurisdiction under Rule 11.3. Appointment and Replacement of Interim Resolution Professional (IRP) / Resolution Professional (RP):The Adjudicating Authority appointed Mr. Kiran Shah as the new IRP/RP, replacing the appellant. The decision was made to resolve the stalemate between secured and unsecured creditors and to ensure the timely completion of the CIRP. The Tribunal upheld this decision, noting that the appellant failed to provide effective leadership and that the conflict between creditors was hindering the CIRP process.4. Stalemate between Secured and Unsecured Creditors:The Tribunal noted that the conflict between secured and unsecured creditors, with no consensus on the appointment of the IRP/RP, was causing delays in the CIRP. The Adjudicating Authority's decision to appoint an independent IRP/RP was seen as a necessary step to break the deadlock and progress the CIRP. The Tribunal agreed that the inherent powers under Rule 11 were rightly invoked to address this issue.5. Progress and Conduct of Corporate Insolvency Resolution Process (CIRP):The Tribunal reviewed the status report submitted by the new IRP/RP, Mr. Kiran Shah, which indicated substantial progress in the CIRP. The report detailed efforts to take possession of the corporate debtor's properties, convene CoC meetings, and invite expressions of interest from prospective resolution applicants. The Tribunal found that the new IRP/RP had made significant efforts to keep the corporate debtor as a going concern and protect its assets, justifying the Adjudicating Authority's decision.Conclusion:The Tribunal concluded that the Adjudicating Authority had rightly exercised its inherent powers under Rule 11 of the NCLT Rules, 2016, to appoint a new IRP/RP and resolve the stalemate between creditors. The decision was necessary to ensure the timely completion of the CIRP and uphold the objectives of the IBC. The appeal was dismissed, and the period spent in pursuing the appeal was excluded from the CIRP process. The judgment was directed to be uploaded on the Appellate Tribunal's website and a copy sent to the National Company Law Tribunal, Ahmedabad Bench.