2021 (1) TMI 313

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....ng. 2. This petition has been filed by the petitioner praying for the following reliefs: "A. Pass a writ of mandamus or any other writ order or direction of like nature directing Respondent No.1 to pass directions, guidelines or regulations under Section 196 of the Code so that: (i) The Avoidance Applications filed by the Resolution Professionals in all corporate insolvency cases are taken up before a Resolution Plan is allowed to be filed by any Promoter under Section 29A(g) of the Code. (ii) All Resolution Plans filed by the Promoters of a Corporate Debtor are not proceeded with unless the Avoidance Applications under Sections 43, 45, 50 and 66 of the Code are finalised first. (iii) All persons who h....

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..../2019 and BDR Finvest Pvt. Ltd. v. Ninex Developers Ltd., CP(IB)No.281(PB)/2019, prior to the approval of any of the Resolution Plans filed by Respondent Nos. 2 to 4." 3. As far as prayer A is concerned, the learned senior counsel for the petitioner has placed reliance on the judgment dated 26.11.2020 in WP(C) No. 8705/2019 of this Court in Venus Recruiters Private Limited vs. Union of India & Ors. to submit that this Court has held that once the CIRP proceedings are completed, the Resolution Professional cannot decide on the applications pending under Section 26 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code). The learned senior counsel for the petitioner submits that in the present case applications ha....

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....ion 25(2)(j) of the Code can continue to be adjudicated upon after the approval of the Resolution Plan, observed as under:- "72. A conjoint analysis of Sections 43 and 44 read with the applicable Regulations clearly shows that the assessment by the RP of the objectionable transactions including preferential transactions cannot be an unending process. The examination has to commence on the insolvency commencement date. The RP has to form an opinion by the 105th day (pre-amendment) and 75th day (post-amendment). If the RP comes to the conclusion that the Corporate Debtor has been subject to preferential transactions, the determination has to be made by the 115th day. The RP also has to apply to the NCLT for appropriate relief on or b....

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....stark contrast. The Respondents rely heavily on this provision to argue that avoidance applications would not affect the CIRP. This is because under the scheme of the IBC, insofar as avoidance applications are concerned, the RP has to collect the details, form an opinion, make a determination and submit the same to the NCLT within the prescribed timelines. This is independent of the various other steps which are part of the CIRP. The activities in respect of objectionable transactions, which the RP has to conduct, would run parallelly with the other steps of the CIRP. However, finally, the RP would submit all the details to the NCLT along with the Resolution Plans. That is the purpose of the provision. The provision cannot be interpreted in....