IN THE NATIONAL COMPANY LAW TRIBUNAL

MUMBAI BENCH

MA No. 1529 OF 2018

IN CP No. 197 OF 2018
Under Regulation 36A of IBC, 2016.
In the matter of
ICICI Bank Limited
... Petitioner
Vs.
Unimark Remedies Ltd.
... Respondent
MA No. 1529 of 2018
Omkara Asset Reconstruction Pvt. Ltd.
... Applicant

Vs.

Resolution Professional of Unimark

Remedies Ltd.

Order Delivered on 21.12.2018

Coram:
Hon’ble Bhaskara Pantula Mohan, Member (J)
Hon’ble V. Nallasenapathy, Member (T)
For the Applicant: Adv. Mayur Khandeparkar a/w Adv. Kunal Kanungo i/b
M/s. Cogito Legal.
For the Respondent: Mr. Prakash Shinde, Advocate, a/w Mr. Darshit Dave,
Advocate, i/b MDP Partners

Per: Bhaskara Pantula Mohan, Member (J)

ORDER
1. This application is filed by Omkara Assets Reconstruction Private
Limited (Applicant) as a member of joint-venture between Omkara Assets
Reconstruction Private Limited and Raju Chemicals Limited against the
Resolution Professional (RP) of Unimark Remedies Ltd (Corporate Debtor)
with the following prayer:
 IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH
MA No. 1529 OF 2018
IN CP No. 197 OF 2018

a. That this Hon’ble Tribunal be pleased to call for the records of

the 13th CoC meeting and after satisfying itself of the illegality of
the decision of the CoC, refusing to open the envelop of the
Resolution Plan sent by the Applicant and to return the same to
the Applicant without considering the resolution plan on its
merits, be pleased to quash and set aside the decision of the
CoC;
b. That this Hon’ble tribunal be pleased to direct the CoC to
consider the resolution plan submitted by the Applicant on its
merits as Applicant believes that its plan will maximize the asset
value of the Corporate Debtor;
c. That this Hon’ble Tribunal by an order and injunction restrain the
CoC from approving any resolution plan without considering the
resolution plan of the Applicant;
d. Any other order that this Hon’ble Tribunal may deem fit in the
facts and circumstances of the present cae.

2. It is submitted that the Corporate Debtor was put into CIRP by an

order of this Tribunal dated 03.04.2018 and consequently the present
Applicant submitted its claim to the IRP and on admission of the claim the
Applicant was made as member of the Committee of Creditors (‘CoC’) of the
Corporate Debtor. On 08.06.2018, CoC invited prospective resolution
Applicants to submit Expression of Interest (‘EOI’) on or before 29.06.2018
which was subsequently extended to 31.10.2018 and the RP received three
EOI from prospective resolution Applicants. The CoC fixed 31.10.2018 as the
cut-off date for the Resolution Applicants (‘RA’) to submit the Resolution Plan
for approval by the CoC. It is further submitted that two Resolution Plans
were received by the CoC before the deadline of 31.10.2018. The Applicant
submits that it was unable to submit the Resolution Plan within the time
specified. However the Applicant submits that they have forwarded a copy of
the resolution plan to the Respondent RP on 11.12.2018.

3. The Applicant submits that CoC in the 13th meeting held on

12.12.2018 refused to open the cover containing the Resolution Plan
submitted by the Applicant solely on the ground that it was submitted after
the cut-off date even without appreciating and scrutinizing the plan on its
merits. However CoC in the same meeting permitted one Resolution
Applicant lead by Asset Reconstruction Company India Limited (‘ARCIL’) to
revise their plan and submit a fresh revised Resolution Plan for consideration

2
 IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH
MA No. 1529 OF 2018
IN CP No. 197 OF 2018

by CoC. The Applicant alleged that the CoC acted in an arbitrary manner by
refusing to accept the plan submitted by the Applicant. It is contended that
no harm or prejudice would be caused to the Company or the CoC or the
Corporate Debtor if the Resolution Plan submitted by the Applicant is
scrutinized by CoC for its consideration purely on merits. Further, it is
claimed that it will be beneficial to the CoC, Creditors and the Corporate
Debtor. It is further contended that by refusing to accept the plan submitted
by this Applicant the CoC has effectively monopolized the Corporate
Insolvency Resolution Process (‘CIRP’) in favour of ARCIL. The Applicant
further contends that once CoC granted an opportunity to one of the
resolution Applicants to submit a fresh revised Resolution Plan and in the
same manner the CoC ought to have treated the present application in
parity of the same and should have considered the Resolution Plan
submitted by the Applicant. It is further alleged that neither the RP nor the
CoC opened the envelope containing the Resolution Plan or consider the
Resolution Plan on merits. Hence this application.

4. Applicant submits that the decision of RP/COC in rejecting resolution

plan is erroneous for the following reasons:
a. Cut-off date as contemplated by EOI is not mandatory and can be
extended.
b. RP/ CoC can certainly receive the Resolution Plans even after the
expiry of the date of the last day of submission of EOI so long as the
CIRP period has not elapsed and/or any other Resolution Plan has not
already be accepted by the CoC.
c. RP is required to present the Resolution Plan to the CoC as provided
under Section 30(3) of the Code, but admittedly RP in the present case
has not submitted the Resolution Plan in the manner as contemplated
but as only forwarded the envelop to the CoC and by doing so RP in
fact has extended the period for submission of Resolution Plan and
therefore CoC was duty bound to consider the Resolution Plan on
merits.
d. CoC is mandated under section 30(4) of the Code to consider the
Resolution Plan on merits and it cannot reject the Resolution Plan
forwarded by RP without considering the same on its merits.
e. The object of the Insolvency Code is to maximize the value of the
assets and to ensure that best possible returns has drawn from

3
 IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH
MA No. 1529 OF 2018
IN CP No. 197 OF 2018

Resolution Plan and the action of the CoC in rejecting the Resolution
Plan would defeat the object of the Insolvency Code.
f. The Regulations framed under the Code cannot be construed in a way
so as to deprive any Resolution Applicant from coming forward at any
stage prior to acceptance of other Resolution Plan by CoC/NCLT and/or
expiry of CIRP period.
g. The Applicant submits that in the following cases, NCLT and NCLAT
have permitted submission of Resolution Plan at a subsequent date:
I. Punjab National Bank vs. Bhushan Power & Steel Ltd. NCLT
New Delhi, CA No. 152(PB)/2018 in CP (IB)-202(PB)/2017
II. Sharda Energy & Minerals Ltd. Vs. Impex Metal & Ferro Alloys
Ltd. NCLT Kolkata, CA(IB) No. 641/KBH/2018 in CP No.
176/KB/2018
III. Binani Industries Ltd. Vs. Bank of Baroda, NCLAT, CA(AT)
(Insolvency) No. 82 of 2018
IV. SBI vs. Adhunik Alloys & Power Ltd., NCLT Kolkata, CA (IB)
No. 1086/KB/2018 and CA (IB) No. 1092/KB/2018 in CP (IB)
No. 387/KB/2017
V. Canara Bank vs. Deccan Chronicle Holdings Ltd., NCLT
Hyderabed, IA No. 253/2018 in CP(IB) No. 41/7/HDB/2017.

h. Regulation 36A of IBBI (Insolvency Resolution Process for Corporate

Persons) Regulation, 2016 was amended w.e.f. 03.07.2018 will not
apply to this case since EOI had been issued by the RP on 08.06.2018.
However, the erstwhile Regulation 36A which came into effect on and
from 06.02.2018 would be applicable to this case. In any case RP
himself has not issued EOI in terms of Form G and therefore cannot
oppose this present application.

5. The counsel for the Respondent filed written submissions contending

that the Applicant is one of the Financial Creditors of the Corporate Debtor
and also a member of CoC and therefore is aware of the strict timelines
prescribed under the Insolvency and Bankruptcy Code. It is submitted that
pursuant to section 25(2)(h) of the code, the RP had issued advertisement
on 08.06.2018 inviting EOI from prospective resolution Applicants. The last
date for submission of EOI was extended thrice by announcement made on
the website of the Corporate Debtor that is on 28.06.2018, 19.07.2018 and
17.08.2018. It is further submitted that the request for resolution plans
(RFRP) inviting resolution plans from Resolution Applicants was published on

4
 IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH
MA No. 1529 OF 2018
IN CP No. 197 OF 2018

the website of the Corporate Debtor on 16.07.2018 with the cut-off date for
submission of the Resolution Plan as 14.08.2018. Subsequently, the cut-off
date was extended to 14.09.2018, and thereafter to 01.10.2018 and further
extended to 31.10.2018. It is submitted that four EOI were received from
Resolution Applicants and two Resolution Plans were received within the cut-
off date of 31.10.2018. The Applicant herein has not submitted the
Resolution Plan on or before 31.10.2018, however the Applicant has
submitted the Resolution Plan on 12.12.2018 which is beyond the cut-off
date. It is further submitted that the 270 days of CIRP will expire on
29.12.2018. The Respondent submits that the present application is a clear
abuse of process of law with mala fide intent to disrupt the CIRP and this
Application is to be dismissed with exemplary cost.

6. In reply to the contention of the Respondent, the Applicant further

submits that they were making efforts to tie up with some prospective
investors and it was only few days back a concrete picture has emerged
which would in their opinion can definitely revive the prospects of the
company. The delay in submitting the Resolution Plan is neither deliberate
nor wanton and is purely on account of the reasons beyond their control.

7. This Bench after hearing both the parties, looked into the Regulations
which would not allow the acceptance of any proposal by any resolution
Applicant beyond the date as fixed by the CoC. It is clear that the Resolution
Applicant had approached the RP with a proposal at the 12th hour but
certainly before accepting or finalization of any Resolution Plan.

8. Now the point is whether the Resolution Plan of the Applicant can be
considered at this belated hour or should the same be rejected even without
looking into the same. In our view of the case and keeping in view the very
object of the Code, when there is a clash/ conflict between the Regulations
and the Code, the object of the Code is paramount and not the Regulations
which are formed only for the just implementation of the Code. Purely on the
basis of technicalities, the rejection of Resolution Plan even without looking
into its merits, is certainly an act which shall go against the very spirit of the
Code and may even result in a huge loss to the Company. Any Regulation
which does not anticipate such a situation and if the same comes in the way
of proper justification and implementation of the principles of the Code, the
same need not be considered nor can be treated as an impediment in the
implementation of the Code.

5
 IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH
MA No. 1529 OF 2018
IN CP No. 197 OF 2018

9. For all the aforementioned reasons we are of the considered view that
the spirit of the Code is first and then comes the other things. The rejection
of the Resolution Plan by the CoC even without opening the envelope
containing the Resolution Plan on the ground that the same is submitted
after the expiry of the stipulated time fixed by the CoC, is certainly against
the law/Code and we hereby direct the Respondent to forthwith consider the
Resolution plan of the Applicant on its merits and judicious decision may be
taken in the best interest of the parties concerned. The Application is
allowed.

SD/- SD/-
V. Nallasenapathy Bhaskara Pantula Mohan
Member (T) Member (J)

6
 IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH

MA No. 1569 OF 2018

IN CP No. 197 OF 2018
Under Section 60 (5) of IBC, 2016.
In the matter of
ICICI Bank Limited
... Petitioner
Vs.
Unimark Remedies Ltd.
... Respondent
MA No. 1569 of 2018
Mr. Amit Gupta
... Applicant/ Resolution Professional
Order Delivered on: 21.12.2018
Coram:
Hon’ble Bhaskara Pantula Mohan, Member (J)
Hon’ble V. Nallasenapathy, Member (T)
For the Applicant: Mr. Prakash Shinde, Advocate, a/w Mr. Darshit Dawe,
Advocate, i/b MDP Partners

Per: Bhaskara Pantula Mohan, Member (J)

ORDER
1. This application is filed by the Resolution Professional Mr. Amit Gupta

seeking this Tribunal to exclude the period of 15 days from the Corporate

Insolvency Resolution Process (‘CIRP’) u/s 60(5) of the Insolvency and

Bankruptcy Code, 2016 (‘Code’).

2. It is submitted that the Corporate Debtor was put into CIRP by an

order of this adjudicating authority dated 03.04.2018, the applicant was

appointed as Interim Resolution Professional (IRP), the CIRP period in terms

of Section 12(1) of the Code expired on 30.09.2018, by an order of this

Tribunal dated 10.09.2018 an extension of 90 days was granted and

accordingly the CIRP will come to an end on 29.12.2018. The applicant

1
 IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH
MA No. 1569 OF 2018
IN CP No. 197 OF 2018

further submits that the order of admission of CIRP was passed on

03.04.2018 but the said order copy was received by the Applicant only on

06.04.2018. One Omkara Asset Reconstruction Pvt. Ltd. (Potential

Resolution Applicant) who is also a member of Committee of Creditor (COC)

of the Corporate Debtor belatedly submitted a resolution plan on 11.12.2018

to the Applicant after the last date for submission of the resolution plan

which was fixed on 31.10.2018, the said resolution plan was not considered

by the COC since it was received after the due date. The said Omkara Asset

Reconstruction Company filed an application before this Tribunal for a

direction to the COC/RP to consider the Resolution Plan and the said

application was pending before the adjudicating authority from 17.12.2018

onwards. The Applicant further submits that he has to examine the

resolution plan submitted by the Potential Resolution Applicant to find out

whether the resolution plan is in consonance with the provisions of section

29(A), 30(2) of the Code and the applicable provisions of Insolvency and

Bankruptcy Board of India (Insolvency Resolution Process for Corporate

Persons) Regulations 2016. He further submits that the Resolution Plan has

to be evaluated by COC, COC has to negotiate with the Resolution Applicant

etc. Therefore, it is submitted that additional time will be required to

complete the steps as mentioned above.

3. The Hon’ble NCLAT in its order dated 08.05.2018 in the case of “Quinn
Logistics India Pvt. Ltd. Vs Mack Soft Tech Pvt. Ltd. & Others” at Para 9 & 10
of the order held as below:-

“9. From the decisions aforesaid, it is clear that if an

application is filed by the ‘Resolution Professional’ or the
‘Committee of Creditors’ or ‘any aggrieved person’ for
justified reasons, it is always open to the Adjudicating
Authority/Appellate Tribunal to ‘exclude certain period’ for
the purpose of counting the total period of 270 days, if the

2
 IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH
MA No. 1569 OF 2018
IN CP No. 197 OF 2018

facts and circumstances justify exclusion, in unforeseen

circumstances.

10. For example, for following good grounds and

unforeseen circumstances, the intervening period can be
excluded for counting of the total period of 270 days of
resolution process:-
(i) If the Corporate insolvency resolution process
is stayed by ‘a court of law or the Adjudicating Authority or
the Appellate Tribunal or the Hon’ble Supreme Court.
(ii) If no ’Resolution Professional” is functioning for
one or other reason during the Corporate Insolvency
Resolution Process, such as removal.
(iii) The period between the date of order of
admission/moratorium is passed and the actual date on
which the ‘Resolution Professional’ takes charge for
completing the Corporate Insolvency Resolution Process.
(iv) On hearing a case, if order is reserved by the
Adjudicating Authority or the Appellate Tribunal or the
Hon’ble Supreme Court and finally pass order enabling the
‘Resolution Professional’ to complete the corporate
insolvency resolution process.
(v) If the Corporate Insolvency Resolution Process
is set aside by the Appellate Tribunal or order of the
Appellate Tribunal is reversed by the Hon’ble Supreme
Court and Corporate Insolvency Resolution process is
restored.
(vi) Any other circumstances which justifies
exclusion of certain period.

However, after exclusion of period, if further period is

allowed the total number of days cannot exceed 270 days
which is the minimum time limit prescribed under the
Code”.

4. This Bench has considered the Misc. Application no. 1529 of 2018 filed

by one M/s Omkara Asset Reconstruction Pvt. Ltd., for a direction to the

3
 IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH
MA No. 1569 OF 2018
IN CP No. 197 OF 2018

Resolution Professional, who is the Applicant herein, to consider the

Resolution Plan submitted by it belatedly and considering the facts and

circumstances therein, this Bench allowed the said application by directing

the Resolution Professional to consider the Resolution Plan submitted by

them.

5. In view of the above said circumstances, this Bench, considering the

warranting situation in this case, hereby excludes the period of 5 days i.e.

the period of pendency of Application No. 1529 of 2018 before this bench

from 17.12.2018 to 21.12.2018, considering the facts, the Resolution

Professional has to carry out the certain duties and obligations with regard

to the resolution plan before submission of same to the COC. In the normal

course, the CIRP period will come to an end on 29.12.2018. But in view of

the above extraneous circumstances warranting the interference of this

Bench which is of the considered view that the period of 5 days during which

the Application No. 1529 / 2018 was pending, is required to be excluded

and consequently the CIRP period of 270 days will end on 03.01.2019.

6. Accordingly, the Application is disposed in the above terms.

Sd/- sd/-
V. Nallasenapathy Bhaskara Pantula Mohan
Member (T) Member (J)

4
This print replica of the raw text of the judgment is as appearing on court website (authoritative source)

Publisher has only added the Page para for convenience in referencing.