TaxTMI 
TaxTMI 
2022 (5) TMI 803
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....ndum forthwith; c) Your Lordships may be pleased to permit applicant herein to submit resolution plan within two/three days from the date granting access to information memorandum to the applicants; d) Your Lordships may be pleased to direct the Respondent herein to consider the Resolution Plan so submitted by applicant herein in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016 on or before 20.01.2020 and put it for voting along with revised resolution plan of Respondent No. 3; e) Pending hearing and final disposal of this application, your Lordships may be pleased to stay voting on resolution plan of Respondent No. 3; (Alternatively, and in case where ex-parte ad-interim relief in terms of Clause E is not granted). f) Your Lordships may be pleased to direct the Respondent herein to reject the resolution of CoC approving the Resolution Plan of Respondent No. 3 and direct Respondent No. 1 to convene meetings of Respondent No. 2 for considering plans of applicant as well as Respondent No. 3 afresh; g) Pass any other order as this Hon'ble Tribunal deems fit in the interest of justice. 2. The brief b....
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.... an advanced stage. Accordingly, it is decided not to act upon the request being received." 5. The Applicant submits that on 14.08.2020 the CIRP was at very initial stage and permitting Applicant to submit resolution plan would not have jeopardized CIRP. Thus, Applicant filed IA 552/2020 with a prayer to direct the Resolution Professional to share information memorandum and accept resolution plan. On 09.12.2020, along with IA No. 552/2020, another IA No. 886/2020 filed by unsuccessful resolution applicant i.e. Respondent No. 3 herein was also listed for hearing and IA 886/2020 was rejected on ground that 270 days of CIRP had already expired on 20.11.2020 and unsuccessful resolution applicant has never approached the RP with his revised plan/offer and have directly approached to this Adjudicating Authority, when an application under Section 33 of the IB Code is already filed. It was further submitted that COC is/are no more in existence. Thereafter Respondent No. 3 approached Hon'ble NCLAT against the Order dated 09.12.2020 and Hon'ble NCLAT vide order dated 23.12.2020 set aside the Order dated 09.12.2020 and directed Respondent No. 2 CoC to make an attempt to save the Co....
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....awn IA No. 552/2020 and hence IA 552/2020, which stands disposed of. iii) In view of Section 25(2)(h) the CoC had fixed certain criteria including the evaluation matrix to evaluate the Resolution plans and one of the criteria was that the net worth of the prospective resolution applicant shall be a minimum of Rs. 5 crores. The Applicant's net worth is Rs. 1,56,00,000/- as per the certificate issued by Government approved valuer. Thus, the net worth of the Applicant itself falls short of the minimum criteria as fixed. iv) The husband of the Applicant is related to the promoter of the Corporate Debtor and thus falls within the definition of related party of the Corporate Debtor and is therefore disqualified to submit resolution plan under Section 29A of the Code. The action of the applicant is only a means to cause further delay in the CIRP of the Corporate Debtor and thereby giving chance to the promoters to put a foot in the door. 9. The Respondent No. 2 CoC has also filed its reply and submits that as the resolution plan submitted by resolution applicants were not approved by requisite majority, but the resolution for liquidation of the Corporate Debtor wa....
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....playing field by granting corresponding permission to the other resolution applicant to place its modification for consideration of CoC." b) The order passed by Hon'ble NCLT, Mumbai Bench in ICICI Bank Ltd. vs. Unimark Remedies Ltd. (MA No. 1529/2018 in CP No. 197/2018) dated 21.12.2018, reproduced below: "8. Now the point is whether the Resolution Plan of the Applicant can be considered at this belated hour or should the same be rejected even without looking into the same. In our view of the case and keeping in view the very object of the Code, when there is a clash/conflict between the Regulations and the Code, the object of the Code is paramount and not the Regulations which are formed only for the just implementation of the Code. Purely on the basis of technicalities, the rejection of Resolution Plan even without looking into its merits, is certainly an act which shall go against the very spirit of the Code and may even result in a huge loss to the Company. Any Regulation which does not anticipate such a situation and if the same comes in the way of proper justification and implementation of the principles of the Code, the same need not be considered nor c....
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....eets dated 31.03.2015-31.03.2019 the investment in plant & machinery has always been more than Rs. 15 crore. v) The present Application is filed by the Applicant alone wherein she wishes to submit a resolution plan jointly with her husband. vi) The Hon'ble Supreme Court Judgment in Ajay Gupta Versus Pramod Kumar Sharma (CA No. 1385/2022) relied by the Applicant does not apply in the present matter as the facts of the said case is different to the present matter. vii) The Respondent Resolution Professional has relied on following citations: a) The order passed by Hon'ble NCLAT in Innovative Construventures Private Ltd. and Ors. Vs. Brainer Trade and Fin-Tech Private Ltd. and Ors. (CA (AT) (Insolvency) No. 470 & 486/2019), dated 25.11.2021: "8.11 On perusal of the Minutes of the COC, it appears that the RP called the COC Meeting on 15 January 2019 wherein the Expression of Interest (EOI) as submitted by the Appellant was placed before the COC members along with the evaluation by the Resolution Professional. After discussion, it was decided by the COC members that the Appellant's do not fulfill the eligibility criteria. Therefor....
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....y Resolution Process for Corporate Persons) Regulations, 2016 strictly provides that the expression of interest received after the time specified in the invitation under clause (b) of sub-regulation 93) shall be rejected. Considering the above Regulation 36A and other relevant provisions of the Code the CoC in its 6th meeting held on 13.08.2020 decided not to act on the request of the Applicant to submit a resolution plan with following observation: "The Committee of Creditors also expressed that it is a question of Law outside purview and authority of the Resolution Professional and/or the Committee of Creditors to decide themselves on merits and act on the said letter of interest by EOI aspirants. The Committee also took note that the matter can only be decided by the Hon'ble NCLT and an initiative towards this by Committee will be inappropriate as the resolution plan process is already in an advanced stage. Accordingly, it was decided not to act upon the request being received and that the Resolution Professional may accordingly write to the EOI aspirants." The Resolution Professional conveyed the decision of COC along with its observation to Applicant on 14.08.2....
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...., the issue 1 is answered in affirmative. 18. The Respondents in support of its contention that the husband of the Applicant is related to the promoter of the Corporate Debtor has annexed pages of audited accounts of financial year 2018-19. The schedule-4 of balance sheet of the financial year 2018-19 reflects unsecured borrowing in the form of the loans from members/directors/relative of directors of Rs. 14,803,847/- and the ledger account of the unsecured loans reflect that husband of the Applicant Mr. Kiran Pujara had provided unsecured loan of Rs. 7,99,900/-. The Applicant has neither denied the contention of the Respondent nor disputed the documents annexed therewith. However, the Applicant averts that because the Corporate Debtor is a registered MSME, it is eligible to submit a resolution plan. The document annexed by the Applicant in support of its statement is an acknowledgement of filing of the memorandum with District Industries Center, Vadodara under Section 8 of MSME Act, 2006 and not a certificate of registration of Corporate Debtor as MSME. Further the NOTE mentioned in the memorandum mentions as under: "NOTE: THE ISSUE OT THIS ACKNOWLEDGEMENT DOES NOT BES....
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....pt the Resolution Plan, and if rejected may take further suitable decision regarding liquidation." It is noted that the Hon'ble NCLAT has nowhere directed the CoC or the Resolution Professional to consider the resolution plan of any other prospective resolution applicant other than Respondent No. 3. The CoC had approved the resolution plan of Respondent No. 3 in its 12th meeting held on 28.12.2020 and accordingly, Resolution Professional had filed an application for approval of same before this Adjudicating Authority on 03.01.2021 vide IA No. 36/2021 and thereafter this Application is filed by the Applicant on 11.01.2021. 21. In Company Appeal (AT) (Insolvency) No. 420 of 2021, wherein another prospective resolution applicant had desired consideration of its plan in the present CIRP, the Hon'ble NCLAT, vide order dated 18.06.2021 had denied the relief and have recorded as under: "10. We find that the reasons recorded by the Adjudicating Authority have substance and if at belated stage when the Resolution Applicants are already before the Committee of Creditors with their Resolution Plan(s) if new claims keep popping up and are entertained, the CIRP would be j....