In the National Company Law Tribunal

Special Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

Application under Section 60(5) of IBC, Code 2016 read with Rule 11

of the National Company Law Tribunal Rules, 2016;

In the Matter of:

Phoenix ARC Private Limited

…Financial Creditor

Vs.

Arambagh Hatcheries Limited

…Corporate Debtor

And

In the matter of:

Abinandan Holdings Private Limited

Applicant …

Vs.

Pinaki Sircar, RP of Arambagh Hatcheries Limited

….Respondent

Page 1 of 15
 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

Date of Pronouncement of order: 04.04.2024

Coram:

Smt Bidisha Banerjee : Member (Judicial)

Shri Balraj Joshi : Member (Technical)

Counsel appeared physically / through video Conferencing

Mr. Vikram Wadehra, Adv. ] CoC in IA(I.B.C)/1870(KB)2023and

Mr. Mayukh Roy, Adv.

Mr. Piyush Agrawal, Adv. ] Respondent in IA(I.B.C)/247(KB)2024

Mr. Debojyoti Das, Adv.

Mr. Shaunak Mitra, Adv. ] For the Resolution Professional

Mr. Amandeep Singh, Adv. ]

Mr. Vikash Singh, Adv. ]

Ms. Shayana Singhal, Adv. ]

Mr. Sagar Chaurasia, Adv. ]

Mr. Pinaki Sarkar ] RP in person

Page 2 of 15
 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

Mr. D. N. Sharma, Adv. ] For the Applicant in ,

IA(I.B.C)/267(KB)2024

Mr. Rahul Sharma, Adv. ]

Ms. Pallavi Ray, Adv. ]

Ms. Tanvi Luhaniwala, Adv. ] For Workers/Employees

Mr. Roshan Pathak, Adv.

Mr. Ajay Gaggar, Adv. ] For the Suspended Board in

Mr. Uttiyo Mallick, Adv. ] IA(IB)/1112(KB)2023,

IA(IB)/1074(KB)2022

& IA(I.B.C)/267(KB)2024

ORD ER

Per Bidisha Banerjee, Member (Judicial):

1. The Court convened through hybrid mode.

2. Ld. Counsel for the parties were heard at length.

3. This application has been preferred by the Applicant /

Abinandan Holdings Private Limited under Section 60(5) of IBC,

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 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

Code 2016 read with Rule 11 of the National Company Law

Tribunal Rules, 2016 to seek the following reliefs:

a. Appropriate order be passed condoning the delay on the

part of the applicant in submitting the EOI as per Form G

published on October 31, 2022 before the Resolution

Professional / Respondent;

b. Upon the delay being condoned in terms of prayer (a)

above, the Resolution Professional / respondent be

directed to consider the EOI submitted by the applicant in

accordance with law and on its own merits;

c. The Resolution Professional / Respondent be directed to

furnish the Information Memorandum and the RFRP to

the applicant to enable the applicant to take all necessary

steps in submitting the resolution plan within such time as

may be directed by this Adjudicating Authority.

d. Till the disposal of the instant application, the application

filed by the respondent/ RP being

IA(IBC)/1870/KB/2023 for seeking liquidation of the

Corporate Debtor namely Arambagh Hatcheries Limited

be kept in abeyance;

Page 4 of 15
 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

4. The Applicant states that it intends to revive the Corporate

Debtor.

5. The Committee of Creditors of the Corporate Debtor, has

resisted the prayer of Abhinandan Holdings Private Limited on

the ground that it is a belated one and filed much beyond the

Statutory period under IBC Code.

6. The list of dates and events in regard to the CIRP Process has

been furnished in the following table:

a.

Sl. Date Particular & Events

No.

1. May 13, 2022 The application filed by the

Financial Creditor stood

admitted with the CIRP

having stood initiated against

the Corporate Debtor,

Arambagh Hatcheries

Limited.

2. July 25, 2022 First Form G published in 3

Page 5 of 15
 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

newspapers, Anandabazar

Patrika – West Bengal (In

Bengali), Business Standard

(in English) and Sanmarg (in

Hindi)

3. October 31, Second Form G published by

2022 the RP inviting EoI from

prospective resolution

applicant.

4. November 14, Order of this Tribunal for

2022 extension of CIRP under

Section 12(2) of the Code by

a period of 90 days.

5. March 31, 2023 Order of this Tribunal

granting an exclusion of 60

days in the CIRP of the

Corporate Debtor

6. June 09, 2023 Order of this Tribunal

granting an exclusion of 60

Page 6 of 15
 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

days in the CIRP of the

Corporate Debtor.

7. July 29, 2023 The extended period stood

expired. The RP, in terms of

an application, being IA

(IB)1380/KB/2023

informed that the CIRP qua

the Corporate Debtor is in

process and there is a

likelihood of resolution of the

Corporate Debtor as a going

concern and requested for a

further extension of time.

8. August 07, 2023 Order of this Tribunal further

extending the CIRP by a

period of 60 days w.e.f. 29th

July, 2023. The period of

CIRP stood extended up to

28th September, 2023.

Page 7 of 15
 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

9. September 25, At the 22nd meeting of the

2023 Committee of Creditors, in

terms whereof it had been

deliberated and discussed

that in spite of the Tribunal

having granted a period of 10

days time to submit the Bid

Bond Guarantee by a

prospective resolution

applicant, the last date

whereof stood expired and

elapsed on 22nd September,

2023.

Therefore, CoC, with 99.77%

voting share unanimously

decided to resolve and

liquidate the Corporate

Debtor as no valid and proper

Expression of Interest had

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 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

been received till the

extended cut-off date.

10. September 28, The extended period for the

2023 CIRP stood elapsed due to

efflux of time with no

compliant resolution plan

having been received.

11. November 01, An application for liquidation

2023 of the Corporate Debtor

having been filed following the

Resolution passed by the CoC.

12. January 27, A letter by the Applicant,

2024 admittedly, seeking to submit

its expression of interest for

initiating CIRP of the

corporate Debtor, during the

pendency of the application

filed by the RP seeking initiate

liquidation of the Corporate

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 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

Debtor.

7. It is the contention of the CoC that an extension of 90 days

granted after expiry of 180 days as well as exclusion of a period

of 60 days have been allowed vide orders dated 31.03.2023

and 09.06.2023 passed by this Adjudicating Authority.

8. Therefore, a period over and above the statutory period of 330

days for CIRP to be completed has already expired. At this

belated stage, applicant’s request for a copy of Information

Memorandum and RFRP qua the Corporate Debtor, will

tantamount to rebooting the entire CIRP process when the CoC

has already resolved to liquidate the Corporate Debtor.

9. Further, that the application has been filed against commercial

wisdom of the Committee of Creditor. Reference has been

made to the decision of the Hon’ble Apex Court in K. Sashidhar

Vs. Indian Overseas Bank & Ors. [CA No. 10673 of 2018 with

CA No. 10719 of 2018, CA No. 10971 of 2018 and SLP (C )

No. 29181 of 2018] that “upon receipt of a rejected Resolution

Plan, the Adjudicating Authority is not expected to do anything

more; but is obliged to initiate liquidation process under Section

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 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

33(1) of the I & B Code. The legislature has not endowed the

adjudicating authority (NCLT) with the jurisdiction or authority

to analyse or evaluate the commercial decision of the CoC much

less to enquire about into the justness of the rejection of the

resolution plan by the dissenting financial creditor.”

10. Reference is also made to Kalpraj Dharamshi & Anr. V. Kotak

Investment Advisors Ltd. & Anr.; Civil Appeal No. 2943-2944

of 2020 that “the commercial wisdom of CoC has been given

paramount status without any judicial intervention for ensuring

completion of the stated processes within the timelines

prescribed by the I&B Code.

The legislature has consciously not provided any ground to

challenge the "commercial wisdom" of the individual financial

creditors or their collective decision before the Adjudicating

Authority and that the decision of CoC's 'commercial wisdom' is

made non-justiciable."

11. It is averred that an amount of Rs. 7,84,67,269/- has been

incurred as CIRP cost and the CoC members have already

infused an amount of Rs. 6,42,44,355.17/- towards the CIRP

cost, as no substantial cashflows are generated from the business

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 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

of the Corporate Debtor due to its nearly non-operational

status thereby resulting in further financial stress to the COC

members with the assets of the Corporate Debtor further

deteriorating under the present circumstances.

12. The RP has also resisted the prayer or by way of its submissions.

13. The workers of the Corporate Debtor have however, supported

the application of IA(IBC)267/KB/2024 saying that as on 7th

November, 2023, the RP has admitted their claim of Rs.

900,67,931.87.

14. We have heard the rival contentions and perused the records.

15. The Applicant has referred to the decisions of NCLT, Mumbai

in IA No. 4372 of 2023 in CP(IB)No. 4304(MB) of 2019 (Salil

Shashank Kulkarni Vs. Rubique Technologies India Limited;

Babulal Vardharji Gurja Vs. Veer Gurjar Aluminium Industries

Pvt. Ltd. & Anr. Reported in (2020) 15 SCC 1; CoC of Essar

Steel India Limited Vs. Satish Kumar Gupta and Ors. Reported

in (2020) 8 SCC 531, to contend that the primary focus of the

Code is to ensure revival of the Corporate Debtor.

16. It is submitted that it came to know about the CIRP only on

03.01.2024 whereafter it has come up with this application.

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 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

17. In our considered opinion, the plea of the applicant is not

tenable, in view of the fact that way back on 20.09.2023 more

than one year after initiation of CIRP, the CoC with 99.77%

voting share have unanimously decided to resolve and liquidate

the Corporate Debtor after following the laid down procedure

and process.

18. As this Tribunal finds no reason to allow the Applicant

extension of time to submit its EoI against Form ‘G’ that was

published on 31.10.2022, this application is rejected.

19. However, Since the Applicant has claimed that it has tendered

the EMD of 15,00,000/- (Rupees Fifteen Lakhs) in terms of

bank draft vide Demand Draft No. 453795 dated 01.02.2024

drawn in favour of “Arambagh Hatcheries Limited under CIRP”

at Shibpur Branch, in case the same has been encashed, the RP

is directed to refund the said EMD and any other deposit in this

regard.

20. The Registry is directed to send e-mail copies of the order

forthwith to all the parties and their Ld. Counsel for

information and for taking necessary steps.

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 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

21. Certified copy of this order may be issued, if applied for, upon

compliance of all requisite formalities.

Balraj Joshi Bidisha Banerjee,

Signed on this the 04th day of April, 2024

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 In the National Company Law Tribunal

Division Bench, (Court-II), Kolkata

IA (IB) No. 267/ (KB) /2024

In CP No. 1536/( KB) /2019

M. Jana (P.S.)

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