9911796707
TMI Blog2020 (12) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... against Impugned Orders dated 31st January, 2020 passed in MA/1322/2019 & MA/1323/2019 in MA/406/2018 in TCP/205/IB/2017. The Corporate Debtor/M/s. Forward Shoes (India) Pvt. Ltd. is under Liquidation since Liquidation Orders dated 11th December, 2018. The Appellant is admittedly promoter of the Corporate Debtor which has gone in Liquidation. 2. It is stated that earlier when Liquidation Order was passed it was challenged before this Appellate Tribunal and Appeal got dismissed. During the course of Liquidation Proceedings, the Appellant claims to have filed two schemes. One is Annexure -6 (Page 75) and other scheme is Annexure-7 (Page 106). Both are dated 25th September, 2019. The Learned Counsel for the Appellant submits that in both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity observed in Paragraph 8 (as at Page 11 of the Impugned Order which has 3 para '8'), as under:- "8. The Learned Counsel for the Respondent, contradicting the submissions made by the Learned Counsel for the Liquidator has emphatically contended that the Corporate Debtor is an MSME and as such the ineligibility in relation to Section 29 A of the IBC, 2016 would have no bearing upon them by virtue of Section 240A of the IBC, 2016. A perusal of the MSME Certificate attached with the typed set filed by the Respondent would goes on to show that the said Certificate was obtained on 02.04.2018, which is after the initiation of the CIRP by this Tribunal. Further, it may be seen in the said MSME Certificate that the Investment (Plant & Machiner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the Appellant who submitted these schemes to the Liquidator is merely a facilitator for the scheme being proposed and for execution of the same. For the sake of convenience, we refer to the averments made in Annexure-6. The Learned Counsel referred to Part-I of the scheme Paragraph 2 (Page 84) where it is recorded that the Applicant "shall not interfere in the current business or management status of the Corporate Debtor". The Learned Counsel also referred to Status Report which was filed by the Liquidator (Annexure -9 Page 146) at Page 151 where it was mentioned in Paragraphs 8 and 9 as under: "8. The Respondent in the proposed scheme is only facilitator of the development of the property of the Corporate Debtor. The Respondent ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning them in details and without giving opportunity to the Appellant on the basis that the Appellant was hit by Section 29-A of IBC. 7. It is further argued by the Learned Counsel for the Appellant that Annexure 10 (Page 153) entry No. 18 in Certificate mentions "Investment (Plant & Machinery/Equipment's) as Rs. 2 lakhs. The Learned Counsel referred to another document at Page 122 to show that in 2017 the value of the Plant and Machinery was shown around Rs. 59 lakhs which would have further gone down thus according to him the Adjudicating Authority erred in comparing value of the property of Corporate Debtor and reading the same also in the column of Plant & Machinery/Equipment. The Learned Counsel for the Appellant states that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and executing the scheme. Learned Counsel referred to contents of Part VI where there are recitals that the Corporate Debtor shall ensure transfer of said property in favour of the Applicants, nominees, purchaser etc. Referring to all these contents, the averment is that in effect it is the Appellant alone who would be doing everything and thus, the argument is that the Adjudicating Authority rightly found to the effect that the Appellant who was ineligible under Section 29-A was trying to make back-door entry. 9. Learned Counsel for the Liquidator further submitted that during pendency of the Liquidation Proceedings, the Appellant made the E-Application on 27th December, 2019to Ministry of MSME as can be seen from Annexure R- 8 of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator of the two schemes as stated. Having gone through the contents of the schemes, it is quite clear that the Appellant was to remain in command. We do not find it can be said that the Appellant is only a mere facilitator. The Schemes were of Appellant and were fully centered and linked with Appellant who was ineligible under Section 29-A of IBC. 12. Coming to the Certificate of MSME Annexure -10 there is no dispute regarding the fact that Liquidation Proceedings started on 11th December, 2018 and the schemes were submitted by the Appellant On 25th September, 2019 and the Application for obtaining Certificate of MSME was filed on 27th December, 2019. We find substance in the submissions of the Learned Sr. Counsel for the Liquidator that w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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