TaxTMI 
TaxTMI 
2022 (3) TMI 992
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....ns of new lease agreement to be entered into with the SRA, will be decided by the Board of NITHM and will inform the COC shortly and based on that RP advised the Prospective Resolution Applicants to submit revised plan within one week from the date of intimation of new lease terms and conditions. 3. The details of exclusion and extension granted by this Adjudicating Authority are tabulated below: SI No IA No Order date Order Passed 1 327/2021 14.07.2021 Granted 99 days exclusion 2 629/2021 01.11.2021 Granted 90 days extension 3 61/2022 18.01.2021 Granted 60 days exclusion 4. After excluding 99 days the CIRP period got extended from 20.07.2021 to 27.10.2021 and 270 days of CIRP came to an end on 25.01.2022. Due to Omicron variant, the Hon'ble Supreme Court directed extension in period of limitation from 15.03.2020 to 28.02.2022. After excluding 60 days from 270 days, the CIRP period of 270 days gets concluded on 26.03.2022. 5. The revised plans were submitted by the Prospective Resolution Applicants. However, due to non-finalization of lease terms the PRA's submitted conditional plans. 6. In 18th COC meeting, the Di....
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....the amended proviso, inserted w.e.f. 16.8.2019 in Section 12 IBC, the CIRP shall mandatorily be completed within a period of three hundred and thirty days from the insolvency commencement date, including any extensions and exclusions granted under this section. 11. Hon'ble Supreme Court of India, in Committee of Creditors of Essar Steel vs. Satish Kumar Gupta & Ors., while striking down, the word "mandatorily" used in the amended proviso as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigant's right to carry on business under Article 19(1)(g) of the Constitution, further held that, "The effect of this declaration is that ordinarily the time taken in relation to the corporate resolution process of the corporate debtor must be completed within the outer limit of 330 days from the insolvency commencement date, including extensions and the time taken in legal proceedings. However, on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution p....
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....mukh Builders, are undoubtedly, conditional as both these applicants have been insisting that existing lease in favour of the CD, should have a renewal clause for another 33 years lest the first payment will not be made besides that the plan submitted is subject confirmation of clause relating to renewal of lease by another 33 years, which is evident from the minutes of COC meeting dated 13/01/2022. 14. The petitioner has claimed that NITHM, one of the members of COC, has informed (no record is filed before us) that the clause providing for renewal of the lease as conditioned by the above two prospective resolution applicants is under consideration by the Government of Telangana, the Resolution Professional at the behest of the COC has been filing applications for exclusion as well as extension of time from time to time, including the present application in hope of government of Telangana, would accept the request for incorporation of renewal clause in the lease document so that it can comply the above "conditions" of the prospective resolution applicants once the time sought for is granted. Therefore, it is clear that the above ground put forth by the applicant does not fit wit....
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....ditional, the Resolution Professional ought to have insisted the Prospective Resolution Applicants to make their plans un-conditional and ought not to have included in the provisional list of eligible Prospective Resolution Applicants. However, the Resolution Professional treated these two conditional plans as eligible and included them in the list of eligible Prospective Resolution Applicants. That apart, both the CoC and the resolution professional have actively indulged in not only promoting free negotiation of the terms of the resolution plan put forth by the parties/prospective resolution applicants but also seeking time to fulfill the contractual terms dictated by the prospective resolution applicants, in utter disregard the IBBI Regulation, supra, and the intent of IBC. 18. Hon'ble Supreme Court of India, in Ebex Singapore, supra, has held that; "We cannot afford to be swayed by abstract conceptions of equity and 'contractual freedom' of the parties to freely negotiate terms of the Resolution Plan with unfettered discretion that are not grounded in the intent of the IBC". 19. Thus, it as clear as crystal that the CoC, instead of rejecting at the th....