TaxTMI 
TaxTMI 
2020 (2) TMI 1072
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....e application that the Resolution Professional (RP) is not conducting the CIRP in accordance with the provisions of IBC. Some of the instances stated by the applicant are as follows :- (a) That the eligibility criteria and terms and conditions stipulated in the invitation seeking Expression of Interest (hereinafter referred to as "EOF') are irrational, unreasonable & discriminatory, as a result no bids came. (b) That the Bid Bond specified in the EOI invitation is irrational and unreasonable. The Bid Bond under the EOI invitation stipulates that the shortlisted bidder shall deposit a refundable or adjustable Bid Bond of Rs. 2,00,00,000/- (Rupees Two Crores only) in the form of Demand Draft/RTGS/Telegraphic Transfer from. Foreign Countries or in the form of Bank Guarantee of equivalent amount. It is submitted that the above stipulated condition is unwarranted and unreasonable. Also, the terms & conditions of invitation for expression of interest & submission of resolution plan are arbitrary & bad in law. (c) The annexure A of the EOI invitation specifies the Eligibility Criteria to be met by the Resolution Applicant. The eligibility criteria stipulated under Annexure A of ....
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.... It is for these reasons that the Applicant crave leave of this Hon'ble Tribunal to direct the Resolution Professional to revise the EOI in the light of the aforementioned submissions and float the revised EOI accordingly. iii. It is further stated that applicant submitted the requisite documents to the RP in response to the Expression of Interest (EOI) dated 02.08.2018. RP vide email dated 27.08.2018 communicated to the applicant, the application of the Resolution Applicant was not inconformity, hence, rejected. Applicant vide email dated 30.08.2018 enquired as to why his application for being the Resolution Applicant was rejected. RP vide email dated 31.08.2018 communicated to the applicant that the EOI requirement was released in a public domain and he should find it himself why his application was rejected. It is stated by the applicant that it is the duty of RP to give reasons as to why his application was rejected. iv. Applicant also alleged that RP is deliberately increasing the CIRP cost, not taking care of legal matters relating to the Corporate Debtor. It is also alleged that RP is causing erosion of company's assets. It is further stated that RP is not intere....
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....is not in accordance with the requirements of documents for submission of Expression of Interest and such deficiency was intimated to the applicant. 7. RP denied the allegation that the objections and suggestions of the members of Committee of Creditors (CoC) on the Suspended Directors have not been recorded. It is stated that there are questionable entries in the financial statements of the Corporate Debtor, which lead to the financial disaster and management of the Corporate Debtor. It is stated by the RP that the applicant did not furnish a proper details of the assets of the Corporate Debtor as required under the provisions of IBC. 8. RP also filed additional affidavit stating the valuation of the plant and machinery as per the audited financial statements as on 31.03.2017- RP also stated that he entered into several communications from time to time with the Statutory Auditors of the Corporate Debtor to know about the preparation status of the audited annual accounts. RP furnished the details of various communications. 9. Further, to ascertain the status of Audited Accounts for the year ended 31.03.2018 matter was discussed in the CoC meeting held on 06.10.2018. The Promoter....
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....able to the facts on hand. 14. Section 8 of the Act reads as follows :- 8. Memorandum of micro, small and medium enterprises.- (1) Any person who intends to establish,- (a) a micro or small enterprise, may, at his discretion; or (b) a medium enterprise engaged in providing or rendering of services may, at his discretion; or (c) a medium enterprise engaged in the manufacture or production of goods pertaining to any industry specified in the First Schedule to the Industries (Development and Regulation) Act, 1951 (65 of 1951), Shall file the memorandum of micro, small or, as the case may be, of medium enterprise with such authority as may be specified by the State Government under sub-section (4) or the Central Government under sub-section (3); Provided that any person who, before the commencement of this Act, established- (a) a small scale industry and obtained a registration certificate, may, at his discretion; and (b) an industry engaged in the manufacture or production of goods pertaining to any industry specified in the First Schedule to the Industries (Development and Regulation) Act, 1951 (65 of 1951), having investment in plant and machinery of more than one....
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....twhile Ministry of Industry (Department of Industrial Development) within 180 days from the commencement of this Act, file the memorandum, in accordance with the provisions of MSME Act. 17. The contention of learned counsel appearing for the applicant is that it comes under MSME but the applicant did not file any document to show that it is registered under the provisions of MSME Act. Applicant only filed one document i.e. acknowledgement, whereby M/s Varanasi Auto Sales Ltd. (Corporate Debtor) applied for registration. It is dated 30.03.2009. In that acknowledgement it is stated that the activities of the enterprises have been started from 30.05.1977, that means the Corporate Debtor was registered prior to the commencement of MSME Development Act, 2006. In such a case, the proviso to section 8 of the Act applies. The proviso says that if a person that commenced small scale industry and obtained registration certificate before the commencement of MSME Development Act, 2006, is given discretion to file memorandum to the Competent Authority. Proviso (b) relates only to manufacturer of production of goods pertaining to the industry specified in the First Schedule to the Industries (D....