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Bhim Sain Goyal vs The American Swan Lifestyle Co Pvt Ltd ...

National Company Law Appellate Tribunal15 December 2020

Ratio decidendi

The rule this decision rests on

The Supreme Court's suo motu extension of limitation dated 23 March 2020, which extended limitation for filing petitions, applications, suits, appeals and other proceedings from 15 March 2020 until further orders, is confined in its direct terms to the filing of such proceedings; but the spirit of that direction, recognising the hardship caused by the COVID-19 lockdown, applies by analogy to other time-bound proceedings under the Insolvency and Bankruptcy Code, such as the reckoning of the Corporate Insolvency Resolution Process period. An adjudicating authority that declines to exclude time from the Corporate Insolvency Resolution Process period, while giving no reasons addressing the grounds advanced for exclusion, passes a non-speaking order which cannot be sustained. Where restrictions on movement arising from the lockdown impeded the Interim Resolution Professional from performing its functions, the period of such impediment may be excluded in reckoning the 180-day Corporate Insolvency Resolution Process period, and the Appellate Tribunal may grant such exclusion on the basis of a Committee of Creditors recommendation, without prejudice to a further application for extension on cogent reasons.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICompany Appeal (AT) (Insolvency) No. 1067 of 2020IN THE MATTER OF:

Bhim Sain Goyal ....Appellant

Vs

The American Swan Lifestyle Co. Pvt. Ltd. (Under CIRP) ....Respondent

Present: For Appellant: Mr. Pramod K. Sachdeva, Advocates with Mr. Bhim Sain Goyal, IRP in person. For Respondent:

ORDER

(Through Virtual Mode)

15.12.2020: This appeal is preferred by the Interim Resolution Professional -

Shri Bhim Sain Goyal, appointed to conduct the Corporate Insolvency Resolution

Process in respect of the Corporate Debtor - 'American Swan Lifestyle Co. Pvt.

Ltd.', against impugned order dated 23rd October, 2020 passed by the

Adjudicating Authority (National Company Law Tribunal) New Delhi, Court II by

virtue whereof the Adjudicating Authority, while declining exclusion of 167 days

allowed exclusion only to the extent of 68 days from initial period of 180 days of

Corporate Insolvency Resolution Process.

2. Learned counsel for the Appellant submits that the impugned order is a

non-speaking order and the Adjudicating Authority has failed to appreciate that

the Hon'ble Apex Court has extended limitation in suo moto proceedings from

15th March, 2020 till further orders.

Cont'd..../ -2-

3. After hearing Shri P. K. Sachdeva, Advocate representing the Appellant -

Interim Resolution Professional, we find that the order passed by the Hon'ble

Apex Court in suo moto Writ Petition (Civil) No. 3/2020 on 23rd March, 2020

concerns only filing of petitions/ applications/ suits/ appeals and other

proceedings for which period of limitation has been extended w.e.f. 15th March,

2020 till further orders irrespective of the limitation prescribed under the general

law or special laws. Though, this direction given by the Hon'ble Apex Court

under Article 142 r/w Article 141 of Constitution of India has not been

specifically made applicable to matters other than filing of petition, applications,

suits, appeals, etc, the spirit behind it holds good in other proceedings as well.

The Hon'ble Apex Court has taken note of the difficulties arising out of the

imposition of lockdown in the wake of outbreak of COVID 19 pandemic and the

directions came to be passed to obviate such difficulties.

4. In the instant case, we find that the Adjudicating Authority has declined

to exclude 167 days while reckoning the period of Corporate Insolvency

Resolution Process by making an observation that the reasons stated are not

plausible. The reasons assigned for seeking such exclusion and why the same

did not prevail with the Adjudicating Authority have not been addressed. The

impugned order to this extent can safely be termed to be a non-speaking order

and cannot be supported.

Company Appeal (AT) (Insolvency) No. 1067 of 2020 -3-

5. It is submitted by Mr. P. K. Sachdeva, learned counsel for the Appellant

that lockdown was imposed on 25th March, 2020 and even though the unlock

process was stated in a phased manner after 30th June, 2020, many restrictions

were continuing in the entire NCR area where the Corporate Debtor and its

Registered Office is located. The Interim Resolution Professional and his team

could not perform its function due to restrictions on movement.

6. Judicial notice has been taken of the hardship caused, curbs on movement

and normal business activities which is evident from order passed by the Hon'ble

Apex Court in suo moto proceedings. Therefore, following the spirit of the dictum

of Hon'ble Apex Court, we are of the considered opinion that to obviate the

difficulties faced by the Appellant - Interim Resolution Professional in taking

steps necessary for carrying forward the Corporate Insolvency Resolution

Process, the prayer for exclusion of time w.e.f. 20th March, 2020 to 2nd

September, 2020 based on recommendation of Committee of Creditors dated 9th

September, 2020 was warranted.

7. For the reasons stated hereinabove, we set aside the impugned order and

while allowing the prayer direct exclusion of time w.e.f 20th March, 2020 to 2nd

September, 2020 in reckoning of the ordinary Corporate Insolvency Resolution

Process period viz. 180 days. Beyond that, if an occasion arises for seeking

Company Appeal (AT) (Insolvency) No. 1067 of 2020 -4-

extension of time based on cogent reasons, the Resolution Professional shall be

at liberty to seek the same from the Adjudicating Authority. The appeal is

accordingly allowed with direction to the Appellant - Interim Resolution

Professional to carry forward the Corporate Insolvency Resolution Process with

expedition.

8. A copy of this order be communicated to the Adjudicating Authority

(National Company Law Tribunal), New Delhi, Court II forthwith.

[Justice Bansi Lal Bhat] Acting Chairperson

[Justice Anant Bijay Singh] Member (Judicial) am/gc

Company Appeal (AT) (Insolvency) No. 1067 of 2020

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