TaxTMI 
TaxTMI 
2024 (1) TMI 45
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....red applications filed in CP (IB) No. 1705/PB/2018 by which the resolution plan submitted by M/s Kendriya Bhandar, Delhi has been approved. 2. Shorn of unnecessary details, Phoneix ARC Pvt. Ltd. filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') for initiation of Corporate Insolvency Resolution Process (in short 'CIRP') against Anush Finlease & Construction Pvt. Ltd. (Corporate Debtor), which was admitted on 30.05.2019 and Ashish Gupta was appointed as an Interim Resolution Professional (in short 'IRP'). 3. The IRP was appointed as RP in the first meeting of Committee of Creditors (in short 'CoC') held on 01.07.2019. The RP invited Expression of Interest (in short 'EOI') by publication of Form G. M/s Kendriya Bhandar submitted its plan, discussed in the CoC in its 08th meeting held on 13.03.2020 and approved on 17.03.2020. 4. Two unnumbered applications came to be filed one by the RP and other by the Resolution Applicant seeking approval of the resolution plan approved by the CoC of the Corporate Debtor with 77.54%. Both unnumbered applications have been allowed by the Adjudicating Authority on 01.04.2020 with the following i....
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....able by Benches consisting of two Members out of whom one shall be a Judicial Member and the other shall be a Technical Member: Provided that it shall be competent for the Members of the Tribunal authorised in this behalf to function as a Bench consisting of a single Judicial Member and exercise the powers of the Tribunal in respect of such class of cases or such matters pertaining to such class of cases, as the President may, by general or special order, specify: Provided further that if at any stage of the hearing of any such case or matter, it appears to the Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the President, or, as the case may be, referred to him for transfer, to such Bench as the President may deem fit. 1[(4) The Central Government shall, by notification, establish such number of benches of the Tribunal, as it may consider necessary, to exercise the jurisdiction, powers and authority of the Adjudicating Authority conferred on such Tribunal by or under Part II of the Insolvency and Bankruptcy Code, 2016.] (5) If the Members ....
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.... plan and liquidation will not be construed as urgent matters. These matters will be taken up as soon as regular benches start functioning, until such time such application not to be filed. 2. This issues with approval of Hon'ble Acting President, NCLT. （Shiv Ram Bairwa) Registrar" 7. He has further submitted that the order dated 22.03.2020 has been further extended on 28.03.2020 till 14.04.2020. The order dated 28.03.2020 is also reproduced as under:- "National Company Law Tribunal 6th Floor, Block-3, CGO Complex,Lodhi Road New Delhi-110003 Dated:22.3.2020 NOTICE 1. In view of the lockdown announced by the Government of India until 14.04.2020, to curtail the spread of Covid-19, the directions given in the notice dated 22.03.2020 issued by NCLT are hereby extended upto 14.04.2020. 2. This issues with approval of Hon'ble Acting President, NCLT. (Shiv Ram Bairwa) Registrar" 8. It is contended that it has been decided and conveyed to all the NCLTs benches across the country that the matters pertaining to extension of time, approval of resolution plan and liquidatio....
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.... The resolution applicant shall, pursuant to the resolution plan approved under sub-section (1), obtain the necessary approval required under any law for the time being in force within a period of one year from the date of approval of the resolution plan by the Adjudicating Authority under sub-section (1) or within such period as provided for in such law, whichever is later: Provided that where the resolution plan contains a provision for combination, as referred to in section 5 of the Competition Act, 2002 (12 of 2003), the resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of creditors.]" 10. It is further submitted hat the resolution plan has to be tested on the anvil of Section 30(2) which is conspicuous by its absence in the impugned order, therefore, without going much into merit of the case, it is submitted that the impugned order is totally arbitrary and deserves to be set aside. 11. He has further submitted that in such circumstances this Court may remand the case back to the Adjudicating Authority to decide the issue involved in the application o....
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....roviso to Section 419 (3) of the Act authorising the solitary judicial member (Acting President at that time) to entertain unnumbered applications filed by RP and Resolution Applicant to decide the same in such a summary manner, therefore, the answer to this question is that until and unless a notification is issued under the first proviso to Section 419(3) of the Code the single judicial member cannot take upon itself the jurisdiction to entertain an application such like the one in hand and decide the same, therefore, the impugned order has been passed by an authority having no jurisdiction. 19. The second question is in regard to the administrative order which was issued on 22.03.2020 by none else than the NCLT. This administrative order was issued in the wake of Covid-19. It was specifically mentioned in the said instructions that because the whole country is fighting against Covid-19, therefore, during this period the serious matter like extension of time, approval of resolution plan and liquidation shall not be entertained as urgent matters. The President further issued instructions dated 28.03.2020 and extended the order of 22.03.2020 to 14.04.2020 whereas the impugned or....