Vipul Ganda is an Independent Litigation Counsel with over 14 years of experience and a proven track record in Litigation and Dispute Resolution.
Kotak Investment Advisors Limited Versus Mr Krishna Chamadia (Resolution Professional in the matter of Ricoh India Limited) & Ors.
Court / Forum : National Company Law Appellate Tribunal Citation : Company Appeal (AT) (Insolvency) No. 344 – 345 of 2020 Coram : Justice Bansi Lal Bhat , Member (Judicial), Mr. V. P. Singh, Member (Technical), Mr. Alok Srivastava, Member (Technical) Subject : Section 61 of the Insolvency and Bankruptcy Code, 2016 Date of Decision : 2020-08-05
Kotak Investment Advisors (the “Appellant”), was one of the bidders for Ricoh India, who had challenged the decision of the Ld. National Company Law Tribunal, Mumbai Bench dated November 28, 2019 in Miscellaneous Applications No. MA/1039/2019 & MA/691/2019 in Company Petition (IB) No. 156/MB/2017, before the Hon’ble Appellate Tribunal.
The Appellant had argued that the Dharamshi-Jhunjhunwala consortium was allowed to submit its bid after the expiry of the deadline and when the bids by other bidders had already been opened.
Timeline provided by the Resolution Professional was as follows:
Admittedly, two resolution applicants Phoenix Asset Reconstruction Company Limited and Karvy Group submitted its resolution plan.
On January 10, 2019, the resolution plans were opened by the Committed of Creditors (“CoC”) and on January 15, 2019, the resolution plans were discussed by the CoC.
However, the Resolution Professional accepted two more resolution plans after the expiry of the deadline for submission of the resolution plan being:
from "WeP" Peripherals on January 13, 2019; and
from a consortium of Kalpraj Dharamshi & Rekha Jhunjhunwala on January 28, 2019
No resolution was obtained from the CoC by the Resolution Professional for extension of deadline for submission of EOI from other potential applicants.
Subsequently, CoC and the Resolution Professional allowed the Appellant to submit its revised resolution plan on or before February 12, 2019.
The grievance of the Applicant/Appellant is that the Successful Resolution Applicant, i.e., Kalpraj Dharamshi & Rekha Jhunjhunwala, was allowed to submit its Bid after the expiry of the deadline for submission of Resolution Plan when the Bids by other Resolution Applicants had already been opened and deliberated upon by the CoC.
Whether the Resolution Professional, with the approval of CoC, was authorized to accept the Resolution Plans after the expiry of the deadline for submission of the Bid, without extending the timeline for submission of EOI?
Whether the act of the Resolution Professional, with the approval of CoC, in accepting the Resolution Plan after the expiry of the deadline for submission of Resolution Plan, can be treated as an act under commercial wisdom of the CoC?
Whether Amended Regulation 36A, which came into effect from 04.07.2018, will be applicable in this case, where Corporate Insolvency Resolution Process is initiated against the Corporate Debtor before coming into force of the amended Regulation?
Whether Judgment of the Bench consisting of Member (Technical), who has not heard the argument regarding MA No.1039 of 2019 is valid?
Issue 1 & 2: Admittedly the two resolution plans were admitted after the expiry of the deadline for submission of Resolution Plan without the approval of the CoC. If the Resolution Professional, on the advice of CoC had decided to extend the timeline for submission of bids, then it was mandatory to issue a notification in Form-G, for inviting EOI and in compliance of sub-regulation (5) of Regulation 36A of the CIRP Regulation. Only after publication of fresh invitation in Form-G and fixing a deadline, the Resolution Plan could have been accepted with the consent of CoC. The Resolution Professional therefore had “committed a grave error” in accepting the resolution plan of the consortium after the expiry of the deadline, without notifying any extension to the timelines.
Issue 3: Regulation 36A came into force with effect from July 4, 2018 by the amendment in Corporate Insolvency Resolution Process Regulation, 2016. There is nothing in the amended Regulation which provides for retrospective operation of the amended Regulation. Hence the Regulation shall not be applied to the CIRP comments before July 4, 2018 and shall not have retrospective effect.
Issue 4: It was noticed that the order in MA 1039 of 2019 is passed by Member Judicial and Member Technical, but the argument was heard by only one Member Bench consisting of Judicial Member, which is a violation of Rule 150(2) NCLT Rules, 2016 which provides for the Bench which hears the case to also pronounce the Order.
If no decision is communicated to the Ld. Adjudicating Authority and the timeline for completion of CIRP has already expired, then the Ld. Adjudicating Authority is to pass an order for liquidation of the Corporate Debtor (Ricoh India). The Hon’ble Appellate Tribunal directed Ricoh’s committee of creditors (CoC) to take a decision afresh within 10 days on the resolution plans that had been submitted within the stipulated timeline.
Vipul Ganda is a Delhi based Advocate practicing largely at the Delhi High Court. His practice focus is Dispute Resolution and Litigation and his practice areas include Arbitration, Commercial, Civil, Constitutional, Corporate and Criminal Litigation.