TaxTMI 
TaxTMI 
2022 (10) TMI 203
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....through video conferencing. 2. This application bearing IA No. 900/KB/2022 filed by Mr. Rajesh Kumar Damani praying for directions upon the CoC and the RP to forthwith allow the applicant to make EMD of Rs. One Crore and to consider the resolution plan submitted by the applicant by involving the applicant in the deliberations pertaining thereto and other consequential relief. Facts of the case 3. CIRP was directed to commence against the Corporate Debtor namely Pami Metal Private Limited on November 03, 2021. RP made a public announcement inviting creditors to lodge their claims on 17th November, 2021. As per the Form-G, the last date of receipt of EOI was 2nd February, 2022 and last date for submission of resolution plan was March 16, 2....
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....g EMD under the privileges extended to MSME category. 7. On the importance attached to the MSMEs in the Indian economy, the applicant has relied on Para 79 in Swiss Ribbons judgment by the Hon'ble Supreme Court which inter-alia has cited para 27.4 of the ILC report which reads as under: 27.4 Regarding the first issue, the code is clear that default of INR one lakh or above triggers the right of a financial creditor or an operational creditor to file for insolvency. Thus, the financial creditor or the operational creditor of MSMEs may take it to insolvency under the code. However , given that MSMEs are the bedrock of the Indian economy, and the intent is not to push them into liquidation and affect the livelihood of employees and workers ....
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....C. It is then that the petitioner filed the present application. 10. Regarding the Earnest money exemption, the Applicant has relied on the circular of No. F.20/2/2014-PPD(Pt.) dated 25.07.2017 issued by Ministr of Finance , Govt. of India, which deals with the revision in Rule 170(i) of the GFR 2017, which exempts the MSMEs from furnishing bid security. It is further submitted by the applicant that the similar concessions have been afforded to other promoters by the Hon'ble Chennai and Kochi Benches of the NCLT vide references Ajay Agarwal vs a Ashok Magnetics Ltd. reported in [2019] 108 taxmann.com (NCLT- Chennai) [09-11-2018] and the decision in the case of K. Satheesh Babu Rajesh vs Mr. George Varkey in I.A. (IBC) No. 64/KOB/2021. 11.....
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.... Thereafter at the 5th CoC meeting Held on 11.4.2022 the non-compliance by the Applicant was discussed in detail in the presence of the Applicant at pages 82,85 and 86 of the Application at Annexure A12) 14. Thereafter at the 6th CoC meeting held on 22nd June 2022 the noncompliance by the Applicant in not furnishing the EMD was further discussed (@pages 90, 97 to 100 of the Application, Annexure A14). 15. However, the present Application was not filed in February or in April or in June but was filed in late August 2022. There is no explanation for the delay and the Applicant is not deserving of any reliefs having come at the last possible moment. 16. Today, Ld. Counsel for the RP and RP himself were present in the court and they stated t....
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....day when the matter was heard, the Ld. Senior Counsel appearing for the applicant stated that he was prepared to deposit the required amount of EMD provided he gets an assurance that his plan would be considered by the CoC afresh. 19. The use of the word 'afresh' has been made in view of the observation of the 7th minutes of the CoC, wherein it has been recorded that : "Moreover the decision of not considering the submission of third party EMD at stage and the resolution of Mr. Damani was reconfirmed by the CoC members as well. It was further stated by CoC members that they had also gone, through the resolution plan of Mr. Rajesh Kumar Damani, which was circulated by RP though email and prima facie the plan was found not to feasible and ....