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TMI Blog2021 (7) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember, 2020. This is more than two years of time. Clearly, if in the time prescribed under Section 12 of IBC resolution was not reached in the given time, liquidation is the only consequence which had to follow and which has been ordered though belatedly. There is yet another factor which is relevant and it is found that the Appellant has obtained Annexure-A-3 an MSME Certificate for which application had been made on 5th March, 2019. Clearly, CIRP with regard to the Corporate Debtor started on 19th July, 2018 and on 5th March, 2019 the Corporate Debtor was under the management of IRP/RP - 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. The Appeal is disposed of. - Company Appeal (AT) (Insolvency) No. 43-43A of 2021 - - - Dated:- 9-7-2021 - [Justice A.I.S. Cheema] The Officiating Chairperson And [Dr. Alok Srivastava] Member (Technical) For the Appellant : Mr. Gautam Singhal, Advocate For the Respondents : Mr. Ranjan Agarwal, Advocate for R-1. Ms. Ranjana Roy Gawai, Mr. Pervinder and Mr. Vineet Kumar, Advocates for R-2. Mr. Kartik Malhotra a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed proposal of the Appellant. According to the Appeal, in the 10th Meeting of CoC held on 22nd July, 2019, the Appellant had offered settlement which was accepted by Respondent No. 5 on the condition that the Appellant would make payment of ₹ 30,00,000/- before 5th August, 2019. Appeal claims that the Operational Creditor subsequently backed out of this proposal. Appeal claims that the Appellant made further efforts for settlement and also gave resolution plan and the Resolution Professional had objected to the Resolution Plan in meeting held on 23rd August, 2019 and then, the Appellant tendered Resolution Plan before the Adjudicating Authority and then the Adjudicating Authority directed the Resolution Professional to place it before the CoC. Appeal claims that in the 12th Meeting of CoC held on 7th October, 2019, resolution plan of the Appellant was unanimously approved by the CoC subject to certain fulfilments which were time bound as recorded in the minutes (Annexure A-14 Page 174). The Appeal highlights various efforts made by the Appellant for settlement/ resolution. Appeal claims that I.A. 1156/2020 was filed to direct the Resolution Professional to hold CoC Meeti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant procured the MSME Certificate without authority, copy of which has been filed in the Appeal. The Learned Counsel for Respondent No. 5 is also making various other allegations against the Appellant to state that the Appellant has acted fraudulently. 9. The Adjudicating Authority in the impugned order in Para 4 observed as under: 4. Again, there are several allegations against the ex-promoter who is also the resolution applicant herein regarding the fraudulent transactions etc. Also, on earlier occasions, he has promised to pay and later failed to pay the amount and thus this attempt by him appears merely to stall the proceeding and buy time. Also, the applicant in these two M.A.s is the ex-promoter of the Corporate Debtor against whom an application for preferential transactions was filed by the RP. Here, it is to be noted that the applicant gets hit by Section 29A of the Code and is therefore, restrained from filing the resolution plan. For ready reference, we would like to reproduce Section 29A hereunder: 10. Thereafter, the Adjudicating Authority reproduced Section 29A of IBC. Then, in Para 5, the Adjudicating Authority made the following observations: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the Appellant is attractive that there must be an order required under Clause (g) of Section 29A, which reads as under: 29A. A person shall not be eligible to submit a resolution plan, if such person, or any other person acting jointly or in concert with such person --x---x---x-- (g) has been a promoter or in the management or control of a corporate debtor in which a preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction has taken place and in respect of which an order has been made by the Adjudicating Authority under this Code; 14. There is yet another factor which is relevant and we find that the Appellant has obtained Annexure-A-3 an MSME Certificate for which application had been made on 5th March, 2019. Clearly, CIRP with regard to the Corporate Debtor started on 19th July, 2018 and on 5th March, 2019 the Corporate Debtor was under the management of IRP/RP. The Appellant has not shown that the application for MSME was made through the IRP/RP. The Learned Counsel for Respondent No. 5 is claiming that there was no consent of the IRP/RP. When the Corporate Debtor was not under the management o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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