Kotak Mahindra Bank Ltd vs Apenterprises Pvt Ltd & Ors Through ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI Company Appeal (AT) (Insolvency) No. 146 of 2021 In the matter of: Kotak Mahindra Bank Ltd. ...Appellant

Versus A.P.Enterprises Pvt. Ltd. ...Respondents Through Rajiv Khurana Resolution Professional & Ors.

Present: Appellant: Mr. Udayaditya Banerjee and Mr.Samrat Sen Gupta, Advocates. Respondents: Mr. Arora Vishwas Kumar, Advocate for Respondent No.1. Mr. R.C.Sharma and Mr. Aman Kashyap Advocates for Respondent No.2 - 4.

ORDER

(Through Virtual Mode)

03.03.2021- The present Appeal has been filed by the Appellant - Kotak

Mahindra Bank Ltd, under Section 61 of the Insolvency and Bankruptcy Code,

2016 (in short 'Code') against the Impugned order dated 12.01.2021 passed by

the Adjudicating Authority ('National Company Law Tribunal, Chandigarh

Bench, Chandigarh') in I.A No. 287/2020 and 483/2020 in Company Petition

(IB) No. 119/Chd/CHD/2018 vide which it has allowed to the limited extent of

excluding the period of lockdown i.e. from 25.03.2020 to 31.07.2020 from the

schedule of making payments under the approved Resolution Plan.

Company Appeal (AT) (Insolvency) No. 146 of 2021

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2. The Learned counsel for the Appellant has submitted that the Resolution

Plan of the Corporate Debtor - A.P Enterprises Private Limited was approved

by the CoC in its meeting held on 19.07.2019 and the same was approved by

Adjudicating Authority vide its order 18.03.2020 in C.A No. 610/2019 in

Company Petition (IB) No. 119/Chd/CHD/2018 and the Adjudicating

Authority has directed the Resolution Applicant to implement the said plan and

adhere to the payment timelines mentioned therein i.e. 16 quarters or 48

months from the date of approval. The Resolution Applicant has paid

Rs.3,00,17,650/- and the remaining Rs.2,00,00,000/- has not been paid by

the Resolution Applicant out of the total upfront payment of Rs.5,00,17,650/-

. The Resolution Applicant has taken over the Company after lifting of the

lockdown in May, 2020 and generated sufficient business and hence they

should pay as per the Resolution Plan which they have failed to do. The

Appellant is the largest Secured Creditor having 84.35% voting share in CoC

for the Corporate Debtor and hence they are concerned as to how the

Adjudicating Authority can grant extension of time without taking the

necessary consent of the CoC. The Adjudicating Authority has permitted the

lockdown period to be excluded from the Schedule of making payment under

the approved Resolution Plan vide the impugned order dated 12.01.2021.

3. Once the Resolution Applicant takes over Corporate Debtor, its

supervision and control comes under the preview of the Monitoring Committee.

Company Appeal (AT) (Insolvency) No. 146 of 2021

Page 2 of 4 The CoC becomes irrelevant. The Monitoring Committee comprises generally of

Resolution Professional, a representative of CoC and a representative of

Resolution Applicant. However, Regulation 39(9) of IBBI (Insolvency Resolution

Process for Corporate Persons) Regulations 2016 allows a creditor who is

aggrieved by non-implementation of a Resolution Plan approved under Section

31(1) to apply to the Adjudicating Authority for directions.

4. The Hon'ble Supreme Court of India in suo motu Writ Petition (Civil) Nos.

3/2020 order dated 23.03.2020 and this Appellate Tribunal in suo motu

Company Appeal (AT) (Ins) No. 01/2020 order dated 30.03.2020 have provided

appropriate direction for condonation or extension of period of limitation. The

IBBI has also inserted Regulation 40C to the IBBI (Insolvency Resolution

Process for Corporate Persons) Regulations 2016 for not considering the period

of lockdown for the purpose of timeline of any activity under the Code, subject

to the provisions of the Code.

5. Considering the submissions made, directions of Hon'ble Supreme Court

as stated above and this Appellate Tribunal on Covid-19 Pandemic including

60% payment released by the Resolution Applicant even in Global Pandemic,

we do not find any infirmity in the impugned order for excluding the period of

lockdown from the schedule of making payment under the approved Resolution

Plan. Hence, we do not find any merit in the appeal and the appeal deserves to

Company Appeal (AT) (Insolvency) No. 146 of 2021

Page 3 of 4 be dismissed and is accordingly dismissed. Pending Interlocutory Application,

if any stands disposed of. No order as to costs.

[Justice Bansi Lal Bhat] Acting Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical)

Raushan.k/ G C

Company Appeal (AT) (Insolvency) No. 146 of 2021

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