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Judgment
CA No. 162 of 2019 is filed by the Resolution Professional (RP) under Section 12 (2) and (3) of the Insolvency and Bankruptcy Code, 2016
(Code). Vide order dated 13.12.2018, application filed under Section 9 of the Code by M/s. Worxpace Consulting Pvt. Ltd for initiation of Corporate
Insolvency Resolution Process (CIRP) against IreoFiveriver Pvt. Ltd. (Corporate Debtor) was admitted, moratorium was declared under Section 14
of the Code and Shri Kanwal Chaudhry was appointed as Interim Resolution Professional (IRP). In the second meeting of CoC held on 13.02.2019,
Shri Kanwal Chaudhry, IRP was voted to continue as RP and his appointment as RP was so confirmed by order dated 28.02.2019.
It is stated that the CIRP is coming to an end on 11.06.2019 when 180 days shall expire from the date of admission of the petition and that by way
of the present application, the RP is seeking extension/exclusion of time for running CIRP pursuant to resolution passed by CoC with 79.2% voting
share. Dates and events have been enumerated in Para 3 of the application for the purposes of seeking exclusion of time. It is inter alia stated that on
16.01.2019, the IRP filed application under Section 19(2) of the Code and that an application under Section 17 of the Code being CA No.102/2019
was preferred on 19.03.2019 seeking directions to the Director, Town and Country Planning Haryana since the department was not
cooperating/entertaining the RP. The RP has sought exclusion of 120 days computed till 15.05.2019 for the time lost in collating requisite
record/information. It is further stated that as the CIRP is coming to an end on 11.06.2019, it is imperative in the present circumstances that an
extension for a further period of 90 days be taken for the prospective resolution applicants to submit their Resolution plans and that the process
memorandum, RFRP and Form G have been shared with the financial creditors but the same cannot be published till the requisite extension for
running the CIRP is accorded. It is stated that the resolution seeking exclusion/extension has been voted by the COC with a voting share of 79.2%. It
is prayed that the period of 120 days computed till 15.05.2019 be excluded from the CIRP period and/or extension of the statutory period of 90 days
beyond 180 days for running/conducting the CIRP be granted.
During the course of the hearing, the reliance has been placed on Bhanu Ram & Ors. Vs. BHN Dairies &Allied Ltd. IB-547(PB)/2018 dated
13.05.2019 of the Hon'ble Principal Bench, NCLT New Delhi and it is pleaded that the prayer for exclusion/extension be allowed.
We have carefully considered the submissions of the RP and also perused the record. Agenda Item no.9 of third meeting of COC held on
08.05.2019 related to apprising the Members regarding the delay in timelines prescribed under the CIRP regulation and the reasons thereof and filing
of an application with Adjudicating Authority for extension taking into account exclusion of period with reasons thereof. The minutes of the meeting
note that the appointment of the RP was confirmed only on the 68th day of the insolvency commencement date and despite best efforts, some of the
time lines prescribed under the regulation were breached due to delay in appointment of RP and that apart, RP and his team was were not provided
with the required information and application of non-cooperation was filed by the RP with the NCLT. It is stated that thereafter too, the information
was received/ obtained in staggered and piecemeal manner with no employee on the rolls on the CD and only a consultant appointed by erstwhile
management providing limited information to enable the RP to prepare the Information Memorandum (IM). It is stated that with the IM now available,
it is proposed to issue EOI as per the EOI process and with the time lines being pushed beyond the last date of CIRP i.e. 180 days, the RP needs
instruction to apply for extension (including exclusion of time period wasted on counts mentioned above apart from other constraints). The proposed
resolution i.e. ""resolved that RP is instructed to make necessary filing with the Adjudicating Authority and take all necessary actions as may be
required"" it stated to be passed with 79.2% votes being cast in favour of the resolution.
The present application by the RP under Section 12 (2) of the Code is filed under instructions of the CoC by a vote of more than 66% of the voting
share. Therefore, the conditions provided for by Section 12(2) of the Code are satisfied. We have also examined the minutes of the 3th meeting of
CoC held on 08.05.2019 (agenda item No. 9) and find that the Information Memorandum is stated to be prepared and Expression of Interest (E0I) if
proposed to be issued. The timelines provided for in form no. G therefore necessitate the extension of the duration of CIRP beyond 180 days. We are
satisfied that the subject matter of the case is such that the CIRP cannot be completed within 180 days and we extend the period of CIRP by further
90 days from the date of expiry of 180 days computed from the date of admission of the petition under Section 9 of the Code.
The other prayer made is for exclusion for time. We find that in the judgment of the Honble NCLT Principal Bench, in Bhanu Ram & others
(supra) relied upon by the RP, it was noted that the period of 270 days will come to an end on 11.05.2019 and vide order dated 13.05.2019, exclusion
of period was allowed. In the present case, we have granted extension of 90 days for completion of CIRP. Therefore, sufficient time is presently
available for publishing form G, invitation of EOI and taking further steps for receipt of resolution plans and consideration of the resolution plans. The
application for exclusion is therefore pre-mature and is not being examined presently and is not being presently acceded to. The RP should make
determined efforts to ensure that the CIRP is completed within the extended time and in case of inability beyond his control, the RP will be at liberty to
file application for exclusion which will then be considered on merits.
The application is disposed of as above.