TaxTMI 
TaxTMI 
2023 (2) TMI 1242
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....ase are given hereunder: (a) The main Petition bearing CP(IB)No. 196/BB/2020 filed by the Financial Creditor i.e., Shree Ashraya Souhard Credit Society Limited, a Cooperative Society under Section 7 of the Code for initiation of CIRP in respect of Corporate Debtor, namely, M/s Shree Aashraya Infra-Con Limited was admitted by this Adjudicating Authority, vide order dated 06.04.2021 and the CIRP of the Corporate Debtor was initiated by appointing Mr. Hari Babu Thota as the IRP and he was directed to take necessary actions in accordance with relevant provisions of the Code and Regulations made thereunder. (b) Pursuant to the aforesaid appointment, the IRP had issued public announcement on 11.04.2021, calling upon various creditors of the Corporate Debtor to submit their claims. The IRP filed a report on 01.05.2021 certifying the constitution of the COC of the Corporate Debtor. CoC in its 1st meeting held on 07.05.2021 inter-alia resolved to appoint the aforesaid IRP as the RP of the Corporate Debtor. Accordingly, this Adjudicating Authority approved the said appointment as the RP, vide order dated 13.08.2021 in IA No.203/2021. The CoC consists of following members:- ....
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.....11.2021, as addendum to the resolution plan. (h) In the 4th CoC meeting held on 09.11.2021, Inter-alia requested the members to approve Resolution Plan received from the promoters of the CD being an MSME, for the revival of the CD. (i) It is stated that the Adjudicating Authority vide its order dated 10.11.2021 in IA NO. 257 of 2021, granted extension of CIRP time by 90 days beyond the statutory period of 180 days. (j) It is submitted that, Writ Petitions were filed against the Corporate Debtor and Resolution Professional by deposit holders, with them as Respondent No.2 and Respondent No.3. Further , the petitioners filed a memo for withdrawal and at the hearing held on 01.02.2022 the, Hon'ble High Court of Karnataka rejected all the petitions. (k) It is submitted that ,the promoters of the Corporate Debtor filed an appeal before the Hon'ble National Company Law Appellate Tribunal, Chennai Bench (Comp App (AT) (CH) (Ins.) No.51/2021), against the admission order passed by this Tribunal, the same is yet to be disposed off by the Hon'ble Appellate Tribunal (l) In its 5th meeting held on 15.12.2021, the CoC inter-alia approved for filing o....
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....de confirming its eligibility under section 29A of the Code to submit resolution plan. The contents of the said affidavit are in order. (s) It is stated that CoC authorized the RP to submit the Resolution Plan to this Adjudicating Authority u/s 30(6) of the Code for its approval. Hence, this application. 3. On 15.11.2022, this Tribunal directed the RP to file an Affidavit regarding the eligibility of the Resolution Applicant as per Section 29A of Insolvency and Bankruptcy Code, 2016 , copy of MSME registration certificate of Successful Resolution Applicant, copies of Bank Guarantee issued by SRA and accepted letter of intent issued by SRA and affidavit regarding how the funds will be distributed in the event of realization of proceeds arising from avoidance transaction as per IBBI Notification dated 14.06.2022. Pursuant to the same, the RP filed a compliance affidavit vide diary no. 5261 dated 06.12.2022 enclosing the above documents and as regards how the funds will be distributed in the event of realization of proceeds arising from avoidance transactions, he stated as under: 1) "That we nor any of our related parties never submitted any resolution plan for re....
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.... authorities in view of the decision in Rainbow Papers Ltd and with regard to the PF/Gratuity dues in view of the decision in Jet Airways Ltd. along with a clarification note regarding whether fixed deposit obtained from the resolution applicants towards Performance Bank Guarantee is in accordance with the Code/Regulations, the applicable Regulatory fee payable to the IBBI as per Regulations 31A and pending litigations, if any, against the Corporate Debtor. Further, an explanatory note was to be filed regarding the justification of Plan Value as compared with the Fair Market/Liquidation Value. This was since it was noticed that total amount mentioned in the plan was only Rs. 11,51,01,195/-; whereas the liquidation value was Rs. 30,57,80,347/- and fair market value was Rs. 31,04,80,347/-. 5. In compliance to the order dated 09.12.2022, the RP filed Memo vide diary no. 5625 dated 21.12.2022 stating that, in the present case there are no debts or liabilities due and payable to the Central Government, any State Government or any Authority. The resolution professional has not received any claim from any government department, institution or any statutory authority. It is stated that ....
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....nd CoC Member who approved the Resolution Plan submitted by the Resolution Applicants. (d) It is submitted that the difference in Resolution Plan amount and Liquidation Value arises on account of the fact that several units of the Corporate Debtor's construction remained unsold which have immense value. Thus, there is significant value to the Resolution Applicants (former directors who are not ineligible under S.29A) to complete the Project by way of implementing the Resolution Plan so that the said units may be finished by such infusion. While all Creditors are paid 100%, 2 Homebuyers given their Homes as per their wishes, Creditors settled on a going concern basis as per letters issued by them, the interests of no person are not affected. (e) It is submitted that the Valuation report unlocks the intrinsic value of the Corporate Debtors, as the same is a valuable property and the resolution applicant shall continue to carry out the Corporate Debtor's business of property development. 6. Satisfaction of condition under Section 29A of the IBC, 2016 In respect to this IA filed under section 30(6) of IBC for approval of resolution plan; first of all , the....
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....o the Petitioner to file the affidavit signed by the Resolution Applicants regarding the eligibility of the Resolution Applicants as per Regulation 39(1)(a); and also the copy of the MSME registration certificate of the Corporate Debtor on the basis of which the Promoters of the MSME have claimed their eligibility to submit the Resolution Plan as per Section 29A, read with Section 240A of the IBC. A compliance to the same was made vide diary no. 526 dated 06.12.2022 in which the other documents desired by the order dated 15.11.2022, viz., the Bank Guarantee issued by the successful Resolution Applicant; affidavit regarding the treatment of proceeds from avoidance transactions and proper filing of the columns of the Form-H etc. were also submitted. v). A perusal of the affidavit under Section 29A of the IBC reveals that it is given by Mr. Guruprasad V. Hishobkar and has been given by him on behalf of the two other persons who are also the Resolution Applicants and the same has been signed on 22.10.2021. Moreover, the copy of the MSME certificate has also been enclosed vide Annexure-2 to the letter filed on 06.12.2022; which is numbered as (UDYAM-KR-04-0015104). This "UDYAM ....
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.... the Corporate Debtor was not under the management of the Appellant, such unauthorized application could not have been made and the claim of the Appellant that the Corporate Debtor is MSME would require to be ignored. Appellant cannot take advantage of his wrongful act. Keeping in view Judgment in the matter of 'Arun Kumar Jagatramka vs Jindal Steel and Power Ltd.' 2021 SCC Online SC 220, back door entries cannot be allowed. After CIRP was initiated former Promoter/Director cannot suppress from IRP/RP and apply for MSME Certificate and tide over ineligibility under Section 29A of the IBC. 15. Admittedly, M.A. No. 3020/2019 regarding Section 43, 66, 65 of IBC is still pending and is not decided one way or the other. The observation in context of Section 29A appears to have been made to demonstrate how sufficient chance was given to the Appellant though he appeared to be undeserving, and was now dragging proceedings." viii). Moreover, it was also pointed out in the above decision that though the Corporate Debtor was incorporated in the year 1995, it never sought registration as MSME and it was expressly denied in the Expression of Interest (EOI) issued by the RP pursuant to ....