If the Statute has to be workable, right to move Adjudicating Authority needs to be strictly construed, so as not to defeat the objects of the Statute – Navneet Jain Vs. Manoj Sehgal Resolution Professional Of Sarbat Cotfab Private Limited TRC Corporate Consulting Pvt. Ltd. – NCLAT New Delhi
December 13, 2019
NCLAT held that if Section 30(1) of IBC is perused, it requires Resolution Applicant to state that he is eligible under Section 29A of IBC. As per Sub-Section (2) of Section 30, Resolution Professional has to examine each Resolution Plan received by him to confirm that each Resolution Plan, inter alia, “does not contravene any of the provisions of the law for the time being in force” (which would also include Section 29A). If the Resolution Professional lets the Resolution Plan go ahead to COC (Committee of Creditors), it is for COC to consider if Section 29A is attracted, and if yes, it may act as per provisions under Section 30(4). In this process mentioned as above, there is no scope for an Intervenor to rush to Adjudicating Authority filing application to adjudicate on the eligibility, which Application should be disposed as pre-mature. We find that only when COC has approved a Resolution Plan, can a person claim to be aggrieved to move the Adjudicating Authority. Adjudicating Authority cannot give a premature decision on eligibility as it would interfere with responsibility and duties of Resolution Professional under Section 30(2) and COC under Section 30(4) of IBC. We can also keep in view observations of Hon’ble Supreme Court of India in paragraphs – 79 and 80 in the matter of “Arcelormittal India Private Limited vs Satish Kumar Gupta & others If the Statute has to be workable, right to move Adjudicating Authority needs to be strictly construed, so as not to defeat the objects of the Statute.