Sanjay Gupta vs Committee Of Creditors Through Branch ...

Sanjay Gupta ...Appellant

Versus

Committee of Creditors Through Branch Manager, PNB, B.O. Station Road, Chhattisgarh ...Respondents

Present:

For Appellant: Mr. Kanishk Khetan, Advocate

ORDER

29.04.2019 - 'Corporate Insolvency Resolution Process' was initiated against

'Vandana Vidyut Limited ('Corporate Debtor') on 26th April, 2018. The 'Interim

Resolution Professional' (IRP) was appointed. Before that on 28.03.2018,

'Enforcement Directorate, sub-zone, Raipur, Chattisgarh provisionally attached the

Thermal Power Plant located at Khatghora district, kobra, Chhattisgarh along the

land and the machinery, worth Rs. 603,19,76,500/- as detailed below:-

Company Appeal (AT)(Ins)No. 362 of 2019 contd./ S.N. Description of the Property Value (in Rs.)

1. Plant and Machinery of M/s Vandana Vidhyut Ltd. Valued at Rs 335,46,23910/-

Rs. 1711,13,74,696/- situated at Katghora, District-Korba, Chattisgarh to the extent of Rs 335,46,23,910/-

2. Factory Building of M/s Vandana Vidhyut Ltd, Valued at Rs Rs 266,59,72,781/-

266,59,72,781/- situated at Katghora, District- Korba, Chattisgarh

3. Land Valued at Rs 1,13,79,809/- of M/s Vandand Vidhyut situated Rs 1,13,79,809/-

at Katghira District- Korba, Chhaisgarh.

4. Total Rs 603,19,76,500/-

2) The order was confirmed on 17th September, 2018 and possession notice was

issued on 19th November, 2018. The said order of possession and confirmation

were challenged by the Respondent Punjab National Bank (one of the 'Financial

Creditor' and set aside by the Appellate Authority under PMLA on 2nd January,

2019. Due to such attachment of the property during the period of moratorium,

the 'Resolution Professional' could not take over the charge of the aforesaid property

COMPANY APPEAL (AT)(INS)NO. 362 OF 2019 2 of 'Corporate Debtor' and the records; nor could make it a going concern. In the

aforesaid background, that no person submitted any 'Resolution Plan'. On the

behest of Committee of Creditors the Appellant - 'Resolution Professional' moved

an application before the Adjudicating Authority (National Company Law Tribunal)

Mumbai Bench, Mumbai for exclusion of 119 days for counting the period of 270

days of 'Corporate Insolvency Resolution Process'. The Adjudicating Authority by

impugned order dated 6th March, 2019 rejected the prayer giving rise to the present

appeal.

3) In the impugned order the Adjudicating Authority noticed that the Appellate

Authority in PMLA ordered to exclude the period of pendency and the period of

attachment but over-looked such finding on the ground that in terms of Section

238 of Insolvency & Bankruptcy Code ('I&B Code'), 2016, the I&B Code has over-

riding effect and the Appellate Authority in PMLA has no jurisdiction.

4. Having heard learned counsel for the Resolution Professional and Mr. Yogesh

Kandpal, Assistant General Manager of the Punjab National Bank, we are of the

view that the Adjudicating Authority instead of criticising the observation of the COMPANY APPEAL (AT)(INS)NO. 362 OF 2019 3 Appellate Authority in PMLA should have decided the matter of its own. The

'Corporate Insolvency Resolution Process' having suffered due to attachment of the

Thermal Power Plant of the 'Corporate Debtor', which is the main business. We

hold that the period of 119 days during which the order of attachment continued

should have been excluded by the Adjudicating Authority.

5. In view of such finding, we pass the following period for the purpose of

computing the period of 270 days of 'Corporate Insolvency Resolution Process' .

(i) Exclude the period of 119 days

during which period of attachment as

above was in force during the period of

moratorium;

(ii) The period of pendency of the application

before the Adjudicating Authority i.e. 10th

January, 2019 to 6th March, 2019 i.e. total

56 days during which time no order was

passed; and

(iii) The period of pendency of the present

appeal "5th April, 2019" till today i.e. total 25

days.

COMPANY APPEAL (AT)(INS)NO. 362 OF 2019 4

6. Thereby total period of 200 days (two hundred days) are extended from

computing the period of 'Corporate Insolvency Resolution Process'. The Resolution

Professional, Committee of Creditors and the Adjudicating Authority will act

accordingly and if necessary will call for fresh information memorandum and

Resolution Plans for success of the Resolution Process.

The appeal is allowed with the aforesaid observation. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical)

ss/gc/

COMPANY APPEAL (AT)(INS)NO. 362 OF 2019 5