JUDGMENT :

Heard Dr. Ashok Saraf learned senior counsel for the petitioners. Also heard Mr. K.N. Choudhury learned senior counsel and Mr. S. Chamaria learned counsel for the respondent no. 1, who is the Resolution Professional representing the Corporate Debtor, RSH Agro Products Limited and Mr. S. Dutta learned counsel for the respondent no. 2 Punjab National Bank, Mr. M. Sarma learned counsel for the respondent no. 3 HDFC Bank. None appears for the respondent no. 4 IIFL Finance Limited and proforma respondent no. 5 Kamal Kumar Harlalka.

2. The petitioner no. 1 namely Dyna Roof Private Limited is a private limited company having its registered office at 10th Mile at Mawsmai Village in the Ribhoi district of Meghalaya and is represented by its Director Saurabh Agarwal, whereas the petitioner no. 2 Rohin Kumar Hansaria is the proprietor of a firm namely Steel Sales Corporation having its office at S J Road at Athgaon in Guwahati. Both the petitioners are unsecured financial creditors of the Corporate Debtor RSH Agro Products Limited.

3. At the instance of the Corporate Debtor RSH Agro Products Limited, an insolvency proceeding was initiated under Section 10 of the Insolvency and Bankruptcy Code, 2016 (in short IBC of 2016) before the National Company Law Tribunal (in short NCLT) at Guwahati, resulting in the registration C.P.(IB) No. 18/GB/2021, on the following grounds, as indicated in paragraph 5 of the writ petition :

- Non-disbursement of sanctioned limits for the refinery project.

- Interest Loss.

- Fixed expenditure in Unit-II.

- Large quantity of raw materials purchased in anticipation of refinery completion.

- Constraint on Profitability faced due to lack of adequate need based Working Capital.

- Continuous losses since FY 2018-19

- Restrictions on import of Refined Palm Oil.

4. In course of the proceeding before the NCLT Guwahati Bench, as per the order dated 11.02.2022 in IA (IBC)/07/GB/2022, the respondent no. 1 (in short R1) Purshottam Gaggar was appointed as the Resolution Professional (in short RP) for the Corporate Debtor. In course of the proceeding before the NCLT Guwahati Bench the proforma respondent no. 5 (in short R5) Kamal Kumar Harlalka made an application under Section 12 (2) of the IBC of 2016 for grant of one time extension of the Corporate Insolvency Resolution Process (in short CIRP). Accordingly by the order dated 13.05.2022 the NCLT Guwahati Bench granted an extension of 90 (ninety) days and directed the R1-RP to complete the CIRP within the extended period.

5. The R1-RP made another application being IA (IBC)/60/GB/2022 in CP(IB)/18/GB/2021 under Section 60 (5) of the IBC of 2016 for further extension of the CIRP period by another 30 (thirty) days as per the requirement of respondent no. 2 (in short R2) i.e. the Punjab National Bank.

6. While considering the said application the order dated 25.08.2022 had been passed by the NCLT Guwahati Bench by which the prayer for an extension of a further period of 30 (thirty) days beyond 270 (two hundred seventy) days already availed, was granted. The reason for granting the extension provided in the order dated 25.08.2022 is that a resolution with regard to extension of CIRP was approved with 87.26% voting by the Members of the Committee of Creditors (in short COC). Further, the order dated 25.08.2022 proceeded on the premises that the application was made under Section 60 (5) of the IBC of 2016 read with Rule 11 of National Company Law Tribunal Rules, 2016 (in short NCLT Rules of 2016). The order dated 25.08.2022 is assailed in this writ petition by the two unsecured creditors.

7. Dr. Ashok Saraf, learned senior counsel for the petitioners by referring to the first proviso to Section 12 of the IBC of 2016, which provides that any extension of the period of CIRP under Section 12 shall not be granted more than once, raises the contention that as in the instant case an extension of 90 (ninety) days was earlier granted as per the order dated 13.05.2022 of the NCLT Guwahati Be