B. Naga Bhushan Resolution ... vs Abir Infrastructure Pvt Ltd

Company Appeal (AT) (Insolvency) No. 1486 of 2019

IN THE MATTER OF:

Mr. B. Naga Bhushan, Resolution Professional ...Appellant

Versus

Abir Infrastructure Pvt. Ltd. ...Respondent

Present: For Appellant : Ms. Rakhi Ray, Advocate

ORDER

18.12.2019 Mr. B. Naga Bhushan, 'Resolution Professional' on the

direction of the 'Committee of Creditors' filed an application for exclusion of

certain period during which the matter was pending before the Hon'ble High

Court of Delhi in which winding up proceedings were subsequently transferred.

The Adjudicating Authority (National Company Law Tribunal), Court No. IV, New

Delhi by impugned order dated 23rd October, 2019 observed as follows and

because of such observations, the Resolution Professional was allowed to

withdraw the application subject to payment of cost of Rs. 10,000/- to 'Prime

Minister Relief Fund' :

"Learned counsel appearing argued that the exclusion

may be granted. The prayers sought, in view of the

present amendment, cannot be considered. This shows

lack of application of mind on part of IRP before making

such application. Learned counsel request for allowing 2

him to withdraw the application and liberty to take

appropriate instructions. In our views, such improper

application should not be filed. Application is allowed to

be withdrawn, subject to payment of cost of Rs. 10,000/-

to Prime Minister Relief Fund. IRP may file appropriate

application are as per law."

Learned counsel for the Appellant submitted that the recent amendment

in Section 12 relates to completion of the period of resolution and it does not

relate to 'exclusion of the period'. The Adjudicating Authority has failed to

consider the recent amendment of Section 12 of the 'I&B Code' or any other

provision and the petition for exclusion of period will not affect the decision of

this Appellate Tribunal which relates to exclusion of period and grant of

additional period is distinct than grant of the additional period in the light of the

decision of this Appellate Tribunal in 'Quinn Logistics India Pvt. Ltd. vs. Mack

Soft Tech Pvt. Ltd. & Ors.' - in "Company Appeal (AT) (Insolvency) No. 185 of

2018" . It is further submitted that imposition of cost on the 'Resolution

Professional' was uncalled for.

In the present case, no notice is required to be issued as it will not affect

the right of any person. We are of the view that Section 12, which relates to

grant of additional time or any other amendment do not relate to exclusion of

the period for the purpose of 180 days or 270 days as decided by this Appellate

Tribunal in 'Quinn Logistics India Pvt. Ltd.' (Supra). In fact the Adjudicating

Authority has misconstrued the term and it has failed to notice that the

application is for extension of time and not the application for exclusion. In view

of the aforesaid error apparent qua the observation of the Adjudicating Authority,

Company Appeal (AT) (Insolvency) No. 1486 of 2019 3

we condone the delay of 12 days and set aside the impugned order dated 23rd

October, 2019.

The appeal is allowed.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial)

/ns/gc

Company Appeal (AT) (Insolvency) No. 1486 of 2019