TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 2103
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.... supported by the resolution passed by CoC in its 4th meeting held on 07.08.2018. In agenda item No. 2, the reasons for extension have been listed and the minutes of the meeting of agenda item No. 2 as under:- "To seek an extension from the CoC for the last date of submissions of resolution plan to the RP from 10' August, 2018 to 31st August, 2018. The RP informed the CoC that post discussion with the CoC during the 3(tm)4 CoC meeting held on 10th July 2018 on the EoIs received, he has granted access to data room to the potential resolution applicants post deposit of nonrefundable participation fee (the same has been deferred in certain cases as explained in Item No. 1) and signing of confidentiality undertaking. As discussed during t....
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....ust, 2018." The aforesaid resolution has been passed by the Committee of Creditors by 96.99 % votes as is evident from the e-voting summary of the 4th meeting of the CoC. In the same meeting, agenda item No. 3 has also been passed by the same members of CoC and the RP has been authorised by CoC to file instant application. The following resolution by CoC has been passed:- "RESOLVED THAT approval of the Committee of Creditors ("CoC") be and is hereby granted to Resolution Professional to file an application under Section 12 of the Insolvency & Bankruptcy Code, 2016 with NCLT, Principal Bench, New Delhi for extension of the Corporate Insolvency Resolution Process not exceeding 90 days." It is appropriate to mention that the Corporate....
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.... exceed more than ten then such process seems to be un-necessary. In most of the cases under the IBC the number of resolution applicants are not more than ten. The reasons for such small number are evident. Firstly, most of the time it is a specialized business and the number of such person participating in the CIR process is likely to be limited as the experience has shown so far. Secondly when the magnitude of assets involved is enormous then the number is likely to be limited as is evident from the facts of the present case. We find support to the aforesaid view from the observations made by Hon'ble the Supreme Court in paras 16 & 17 in the case of B. Ramakichenin @ Balagandhi Vs. Union of India and Ors., (2008) 1 SCC 362 which read as u....
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....ecting and appointing authorities as they may not be able to interview hundreds and thousands of eligible candidates; (ii) If a prescribed method of short-listing has been mentioned in the rule or advertisement then that method alone has to be followed." 70. The aforesaid judgment pertains to the area of service law. It clearly proceeds on the principles of Article 14 of the Constitution which is genus and Article 16 (1) is its species. We believe that these principles would be equally applicable to invitation for submission of Resolution Plan. 71. The aforesaid view has been followed and applied by a Division Bench of Bombay High Court in the case of Flemingo Duty-Free Shop Pvt. Ltd. and Mr. Vivek S. Bhatt v. Union of India and Ors.,....
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....ndment does not contemplate floating of any expression of interest. It is beyond our understanding as to how the IBBI has taken upon itself the task of framing Regulation 36A of IBBI (Insolvency Resolution Process for Corporate Persons), Regulations, 2016 using the expression 'invitation of expression of interest' along with Form 'G'. Such an assumption of power would be beyond the competence of IBBI as the source of power to frame Regulation under the IBC is drawn from Section 240 of IBC, 2016. Section 240(1) in categorical terms provides that the IBBI may by notification make regulation consistent with the Insolvency and Bankruptcy Code, and further subject to the Rules framed by the Government under Section 239 of IBC, 2016 for carrying ....