TaxTMI 
TaxTMI 
2022 (12) TMI 149
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....ION PLANS (1) The resolution professional shall issue an invitation, including evaluation matrix, to the prospective resolution applicants in accordance with clause (h) of sub-section (2) of section 25, to submit resolution plans at least thirty days before the last date of submission of resolution plans. (2) Where the invitation does not contain the evaluation matrix, the resolution professional shall issue, with the approval of the committee, the evaluation matrix to the prospective resolution applicants at least fifteen days before the last date for submission of resolution plans. (3) The resolution professional may modify the invitation, the evaluation matrix or both with the approval of the committee within the timelines given under sub regulation (1) or sub regulation (2), as the case may be. (4) The timelines specified under this regulation shall not apply to an ongoing corporate insolvency resolution process- (a) where a period of less than thirty-seven days is left for submission of resolution plans under sub-regulation (1); (b) where a period of less than eighteen days is left for submission of resolution plans under s....
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....t the provisions of the Code. It has been repeatedly emphasised culminating in the rendered in aforesaid judgment that speed is the essence of CIR Process and inviting 'expression of interest' would impede to the speed. In the case of Innoventive Industries Ltd. v. ICICI Bank Ltd. (2018) 1 see 407 passed by Hon'ble Supreme Court has highlighted that the speed is one of the salient features of the IBC, 2016. By use of the words 'expression of interest' the speed is retarted and time is wasted. In the present case on 04.06.2018 'expression of interest' was invited and last date for expressing interest to submit the resolution plan was 18.06.2018 without in fact inviting any resolution plan. Such a course is negation of the salient features highlighted by Supreme Court that the speed is essence of the IBC, 2016, therefore, we have no other option except to declare Regulation 36A as ultra-vires of Section 240(1) of IBC, 2016. The IBBI is directed to frame Regulation according to its competence and the source of power as given to it by the Code. We do not say anything more on this aspect." 5. The Petitioner has challenged the said impugned order before thi....
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.... learned single judge in W.P.(C) No.10189/2018. 2. Via the impugned order, the learned single judge allowed the existing 'Expression of Interest', which had been issued by the Resolution Professional [in short "RP"], to progress further. 2.1. The learned single judge has also observed in the very same order, that in view of the said direction, the order dated 05.09.2018 passed by the National Company Law Tribunal [in short "NCLT"] in the matter of State Bank of India vs. Su Kam Power Systems Ltd will not come in the way in matters wherein 'Expression of Interest' has already been issued by the RPs. 2.2. The record shows that the appellant had assailed by way of W.P.(C) No.10189/2018, the order dated 05.09.2018 passed by the NCLT, which is referred to hereinabove. 2.3. Clearly, the said writ petition i.e., W.P.(C) No. 10189/2018 is pending adjudication before the learned single judge. 3. Furthermore, the record also shows that the predecessor Bench in the instant appeal vide order dated 05.10.2018, has stayed the operation of the order dated 05.09.2018 passed by the NCLT. 3.1. In effect, Regulation 36A of the Insolvency and Bankr....
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....rofessionals, investigation for insolvency professionals, the maintenance and publication of information and data as may be provided in the regulations, conduct periodic studies, alliances with other statutory authorities etc. The IBC also specifies a mechanism for issuing Regulations after doing a public consultation process. Establishment and constitution of the Board is stipulated in Sections 188 and 189 of the IBC and the powers are stipulated in Section 196 of the IBC. A perusal of the powers and functions of the Board shows that the overall supervision and functions under the IBC are to be carried out by the Board. Section 196(2) of the IBC also vests with the Board, the power to make model bylaws to be adopted by the insolvency professional agencies. The Board's power to issue Regulations are recognized in Section 240 of the IBC. Lastly, Section 196(1)(u) of the IBC is a broad provision which stipulates that the IBBI can perform such other functions as may be prescribed. The relevant provisions of the IBC are set out below: "Section 3 of the IBC, 2016 "3. In this Code, unless the context otherwise requires, (1) "Board" means the Insolvency and Bank....
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....relation to insolvency resolution and liquidation for corporate persons including corporate debtors and personal guarantors thereof shall be the National Company Law Tribunal having territorial jurisdiction over the place where the registered office of the corporate person is located. (2) Without prejudice to sub-section (1) and notwithstanding anything to the contrary contained in this Code, where a corporate insolvency resolution process or liquidation proceeding of a corporate debtor is pending before a National Company Law Tribunal, an application relating to the insolvency resolution or bankruptcy of a personal guarantor of such corporate debtor shall be filed before such National Company Law Tribunal. (3) An insolvency resolution process or bankruptcy proceeding of a personal guarantor of the corporate debtor pending in any court or tribunal shall stand transferred to the Adjudicating Authority dealing with insolvency resolution process or liquidation proceeding of such corporate debtor. (4) The National Company Law Tribunal shall be vested with all the powers of the Debt Recovery Tribunal as contemplated under Part III of this Code for the purpose ....
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....that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation." 18. A perusal of the judgment in M/s Mohan Gems & Jewels Pvt. Ltd. (Supra) clearly shows that the NCLAT is of the view that the need for judicial intervention or innovation from the NCLT & NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC. The relevant part of the said judgement is as follows: "26. It is a well settled proposition that the legality of propriety of any Regulation/ Notification / Rules / Act cannot be looked into by NCLT or NCLAT. The Tribunal can only ascertain whether the procedures provided for under the Code / Companies Act, 2013 are being followed or not. The Adjudicating Authority cannot go beyond this. 27. In 'Arun Kumar Jagatramka' Vs. 'Jindal Steel Power Ltd. & Anr.' Reported in Civil Appeal No. 9664 of 2019, the Hon'ble Apex Court while discussing the issue, 'whether in a liquidation proceeding under the Code, a person ineligible under Section 29 A of the Code, is permitted to propose a scheme for revival under Section 230 of the Companies Act,....
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....nalysis of the 2003 Act, e hereinabove, the words 'orders, instructions or directions' in Section 121 of the 2003 Act cannot confer power of judicial review under Section 121 to the Tribunal, which, therefore, cannot go into the validity of the impugned 2006 Regulations, as rightly held in the impugned judgment." 119. The summary of the findings of the Constitution Bench are contained in para 92, which is reproduced below: "92. (i) In the hierarchy of regulatory powers and functions under the 2003 Act, Section 178, which deals with making of regulations by the Central Commission, under the authority of subordinate legislation, is wider than Section 79(1) of the 2003 Act, which enumerates the regulatory functions of the Central Commission, in specified areas, to be discharged by orders (decisions). (ii) A regulation under Section 178, as a part of regulatory framework, intervenes and even overrides the existing contracts between the regulated entities inasmuch as it casts a statutory obligation on the regulated entities to align their existing and future contracts with the said regulations. (iii) A regulations under Section 178 is made und....