SUPREME COURT RULED THAT THE REGULATION 36 A OF THE INSOLVENCY RESOLUTION PROCESS FOR CORPORATE PERSONS) REGULATIONS, 2016 INSERTED VIDE NOTIFICATION DATED 06.02.2018, AS IT STOOD DURING THE PERIOD FROM 06.02.2018 TO 04.07.2018, DID NOT MANDATE THE PUBLICATION OF THE INVITATION OF RESOLUTION PLANS, EITHER IN FORM G OR OTHERWISE, IN NEWSPAPERS. IT IS ONLY THE AMENDED REGULATION 36A, WHICH CAME INTO EFFECT FROM 04.07.2018, THAT REQUIRES THE PUBLICATION OF FORM G IN NEWSPAPERS

 

 

 

 

 

NAME

MOBILE NO.

E-MAIL I’D

RANJEET KUMAR

8383098478, 9667769795

rk@courtkutchehry.com

JAI THAKUR

8130703334, 9355723300

jai.thakur@courtkutchehry.com

RAJEEV RANJAN

9334553249

rajiv.ranjan@courtkutchehry.com

ASHOK MISHRA

9718327746

sales@courtkutchehry.com

RAVI KUMAR


ravi.singh@courtkutchehry.com

Karad Urban Cooperative Bank Ltd. Vs. Swwapnil Bhingardevay & Ors., (2020) 09 SC CK 0009 

A Full Bench of the Supreme Court has set-aside the Order passed by the National Company Law Appellant Tribunal (NCLAT) vide which NCLAT has set aside the approval granted by the National Company Law Tribunal (NCLT) to a Resolution Plan and have remanded the matter back to the NCLT with a direction to have the Resolution Plan re-submitted before the Committee of Creditors. The controversy related to the advertisement issued by the Resolution Professional on 30.03.2018. NCLAT holds that the advertisement was not in conformity with Regulation 36A of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and as per Form G of the Schedule. The Supreme Court held that the conclusions reached by NCLAT in this regard cannot hold water for two reasons. If NCLAT was convinced that the very process of inviting Expression of Interest was vitiated, NCLAT should have issued a direction to start the process afresh all over again by issuing a fresh advertisement. NCLAT did not do this and the person who raised this point is not on appeal. The Supreme Court clarified that Regulation 36A was inserted only with effect from 06.02.2018 under Notification No. IBBI/2017 18/GN/REG024 dated 06.02.2018. It underwent a change under Notification No. IBBI/2018 19/GN/REG031 dated 03.07.2018, with effect from 04.07.2018. Regulation 36A, as it stood during the period from 06.02.2018 to 04.07.2018, did not mandate the publication of the invitation of Resolution Plans, either in Form G or otherwise, in newspapers. It is only the amended Regulation 36A, which came into effect from 04.07.2018, that requires the publication of Form G in newspapers. Therefore, the publication in newspapers made by the Resolution Professional, in the case on hand, on 30.03.2018, was something that was statutorily not required of him and hence the Promoter/Director of the corporate debtor cannot take advantage of the amendment that came later, to attack the advertisement. The Supreme Court allowed the Civil Appeal and by setting aside the Order of the NCLAT, the Supreme Court restored the order of the NCLT. 

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