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2025 (9) TMI 72
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....SC with Mr. Shailendra Kumar Mishra and Mr. Anil Kumar, Advs. for R-2/UOI. JUDGEMENT TUSHAR RAO GEDELA, J: (ORAL) 1. An interesting and uncharted issue has arisen in the present writ petition, namely, "whether, while formulating the tender conditions, the tendering authority should not take into account the provisions of the Insolvency and Bankruptcy Code, 2016, under which a company is resurrected as an ongoing concern by a Successful Resolution Applicant (SRA), in order to achieve the objectives underlying the IBC to nurture such companies instead of disqualifying or holding them as ineligible to even participate in the tender process." 2. The factual matrix leading to filing of the present writ petition, in our humble opinion....
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....t possible competition ought to be encouraged. 5. Learned senior counsel states that the tender conditions disentitle the petitioner from participation by mandating that in case the bidding entity has undergone Corporate Insolvency Resolution Process (hereinafter referred to as "CIRP") in the last seven years from the date of the notification of the tender, such entity would, per se, be ineligible. This, according to him, is an arbitrary and discriminatory stipulation which ought to be either struck off or read down to treat the time spent by the petitioner in the CIRP process as "Zero Period". He states that, if read in that manner, the petitioner would automatically be eligible to participate in the tender. According to him, had the te....
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....ard Mr. Amit Sibal, learned Counsel for the petitioner, Ms. Lakra, learned CGSC and Mr. R.V. Prabhat, learned counsel for the respondent/AAI. 8. The issue which has been pointed out by Mr. Sibal, learned senior counsel in the aforesaid Manual in respect of the considerations of various laws, central to the commercial aspect of Public Procurement Contracts, appears to be an underlying but evolving ethos of the government in the realm of the contracts which it may have to enter into with private entities. We find from perusal of Clause 1.8 of the said Manual that the government has indeed not only considered various laws but has also examined the impact that such laws may have on the commercial aspects of the contracts that the government ....
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....407. The same is extracted hereunder:- "12. The Insolvency and Bankruptcy Code, 2016 has been passed after great deliberation and pursuant to various committee reports, the most important of which is the report of the Bankruptcy Law Reforms Committee of November 2015. The Statement of Objects and Reasons of the Code reads as under: "Statement of Objects and Reasons.-There is no single law in India that deals with insolvency and bankruptcy. Provisions relating to insolvency and bankruptcy for companies can be found in the Sick Industrial Companies (Special Provisions) Act, 1985, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Securitisation and Reconstruction of Financial Assets and Enforcement ....
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....economic growth and development." 10. The Hon'ble Supreme Court in Swiss Ribbons (P) Ltd. vs. Union of India; (2019) 4 SCC 17, while scrutinizing the regime deployed by IBC, 2016 in para 28 held as under: "28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolu....
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....ed to be "SRA" who would be given the task of reviving the Corporate Debtor as an "on going concern". If that is the aim and purport of the IBC, 2016, it is necessary to underscore the fact that this law must and ought to be considered as a crucial component to Clause 1.8 of the said Manual alongwith all other relevant laws. 12. Yet another crucial aspect to be considered is that the stakeholders involved in an ongoing concern taken over by the SRA would also include, perhaps, a large number of workers and employees apart from financial institutions, banks and other stakeholders whose existence may be fully dependent and contingent upon such ongoing concern being rehabilitated and revived. Though, these may not be imperative consideratio....