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TMI Blog2022 (5) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... hdrawing IA No. 552/2020 at such a belated stage by filing a fresh application with same issues against the same parties with an additional ground that Applicant and Respondent No. 3 Jay overseas Pvt. Ltd. be treated at par. 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. Application rejected. - IA No. 24/AHM/2021 in CP (IB) 257/AHM/2019 - - - Dated:- 26-4-2022 - Dr. Deepti Mukesh , Member ( J ) And Ajai Das Mehrotra , Member ( T ) For the Appellant : Jaimin R. Dave , Advocate For the Respondents : Arjun R. Seth , Vishal Raval and Anip Gandhi , Advocates ORDER The instant Application is filed by Ms. Usha Kiran Pujara as a prospective resolution applicant ('Applicant' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o declaration of nationwide complete lockdown from 25.03.2020 no EOI was received. Thus, fresh Form-G was issued on 08.06.2020 wherein last date for submission of resolution plan was given as 04.08.2020. 4. The Applicant submits that one of its family members was suffering from Covid-19 due to which all other family members including the Applicant were quarantined for a considerable period of time and did not have access to the newspapers, therefore Applicant acquired knowledge of Form-G dated 08.06.2020 on 11.08.2020. The Applicant along with her husband vide letter dated 12.08.2020 requested the Resolution Professional to permit them to submit a Resolution Plan. The Resolution Professional through email dated 14.08.2020 replied to the letter dated 12.08.2020 and informed that their letter dated 12.08.2020 was placed before the COC and CoC had decided not to act upon the request. The relevant part of the letter as annexed is reproduced below: The Committee of creditors while taking note of the request made by the EOI aspirant and the keen interest expressed in their letter, also take note that the eligibility of the EOI aspirant is not seen as established in their letter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. 3. Such approach indicates bias/favoritism on the part of Respondent No. 2 for Respondent No. 3. 7. The Applicant further submits that the order of Hon'ble NCLAT nowhere provides that only the Plan of Respondent No. 3 is required to be submitted and no other plans or proposals are to be considered. It is further submitted that if the Respondent No. 1 Resolution Professional had provided access to information memorandum to the Applicant, they would have submitted the Resolution Plan within two/three working days. The Applicant further submits that it undertakes to remit an amount of Rs. 10,00,000/- towards EMD within 48 hours of positive consideration of this Application. 8. The Respondent No. 1 Resolution Professional has filed its reply and made following submissions: i) After publication of second Form-G dated 08.06.2020, two resolution plans were received before the last date of submission of resolution plan i.e. 04.08.2020 and one of the plan was submitted by Respondent No. 3 herein. ii) The Applicant's letter dated 12.08.2020 was put before the CoC for consideration, however since the same was beyond the time limit prescribed under the Code, CoC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/-. Copy of valuation report is annexed. ii) The Corporate Debtor is registered under MSME Act, 2006 and as per Section 240 of the Code, Section 29A (c) and (h) are inapplicable in respect of CIRP of any MSME. Thus, the objection raised by the Resolution Professional that the Applicant is ineligible under Section 29A is misconceived. 11. Neither a reply has been filed by Respondent No. 3 nor any one appeared in its behalf. 12. The Applicant has filed written submissions and averred as below: i) If the revised plan of Jay Overseas Ltd. can be considered after the expiry of CIRP, then CoC and Resolution Professional ought to have granted fair opportunity to the Applicant as well. ii) The Resolution Professional and CoC could not have approved any resolution plan without seeking extension of CIRP. The CIRP period of 270 days expired on 20.11.2020. Thus, when CIRP was not extended beyond 270 days, Resolution Professional could not have proceeded with CIRP. iii) The Applicant relied on following citations: a) The Order passed by Hon'ble Supreme Court in Ajay Gupta Versus Pramod Kumar Sharma (CA No. 1385/2022), dated 25.02.2022: Whether it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng : i) The Hon'ble NCLAT order does not state to take into consideration resolution plans for any other person. ii) The letter dated 12.08.2020 sent by Applicant along with her husband Mr. Kiran Pujara was simply a proposal to submit a resolution plan with an offer of Rs. 6.50 crores and the said letter was not accompanied by any net worth certificate, eligibility documents or other documents required to be submitted with the EOI. iii) The CoC in its 12th meeting had resolved to approve the revised resolution plan dated 25.12.2020 of the Respondent No. 3 and voting report generated which is outside the 270 days CIRP period and done only pursuant to direction of Hon'ble NCLAT vide order dated 23.12.2020 in compliance of the same. Thereafter the instant Application is filed by the Applicant on 03.01.2020 without withdrawing IA No. 552/2020. iv) The Applicant is trying to mislead this Adjudicating Authority by producing acknowledgement receipt as MSME certificate. The document dated 15.12.2011 annexed by the Applicant stating to be an MSME certificate is actually an acknowledgement receipt of Part -I of the form of the memorandum filed by the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted a grave error in accepting the Resolution Plan of the Resolution Applicant Kalpraj Dharmshi Rekha Jhunjhunwala after the expiry of the deadline for submission of the Bid/Resolution Plan without notifying/publishing the extension of the timeline for submission of EOI, as per provision of the I B Code and Regulations thereof. ..... Thus, the Appeals succeed and the impugned Orders both dated 28.11.2019 are set aside. 14. The Respondent No. 2 CoC has also filed its written submissions and reiterated the facts made in its reply. 15. We have considered the submissions made and have perused the documents filed. The issue to be considered in the present case is: i) Whether the instant application is maintainable in view of disposal of IA No. 552/2020? ii) If the issue 1 is answered affirmative, Whether the Applicant is eligible to submit a resolution plan for the Corporate Debtor? iii) If both the issues answered affirmative, Whether the Applicant be allowed to submit a resolution plan at this stage considering the timelines specified under IBC? 16. In the instant matter the second Form-G was published on 08.06.2021 wherein last date for submission of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with the provisions of the Insolvency and Bankruptcy Code, 2016; e) Pass any other order as this Hon'ble Tribunal deems fit in the interest of justice. The bare reading of above reliefs shows that the relief sought in IA No. 552/2020 are similar to the relief sought in the instant Application which was filed on 11.01.2021. It is found from the records of the case that on 15.01.2021, the IA No. 552/2020 was dismissed as withdrawn on the basis of below stated reasons mentioned in the purshis for withdrawal filed by the applicants in IA No. 552/2020: 3. However, during the pendency of the captioned application, lot of developments have taken place in the Corporate Insolvency Resolution Process of the Corporate Debtor i.e., M/s. Jason Dekor Private Limited. In view of the same, the Applicant No. 2 has filed another application being IA No. 24 of 2021 in C.P. (I.B.) No. 257 of 2019 which substantially includes the relief(s) prayed for in the present application as well as the developments that have taken place in the interregnum period. 4. Under the circumstances, your Honour's are requested to allow the Applicant to withdraw the Interlocutory Applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in its rejoinder submits that she is willing to submit the Resolution plan along with her husband and the net worth of applicant along with her husband is more than Rs. 5 crore. Making such a contention much later to request to file plan and before this Adjudicating Authority without amending the Application also does not qualify the Applicant to submit a resolution plan. Thus, as a sequel to above, second issue is answered in negative. 20. Even if both the issues were answered in affirmative, it is an undeniable fact that the Applicant had wasted the time of this Adjudicating Authority by withdrawing IA No. 552/2020 at such a belated stage by filing a fresh application with same issues against the same parties with an additional ground that Applicant and Respondent No. 3 Jay overseas Pvt. Ltd. be treated at par. The facts of the case show that it was only upon the order of Hon'ble NCLAT, the CoC had considered the revised resolution plan of the Respondent No. 3. The relevant extract of the order dated 23.12.2020 of Hon'ble NCLAT is reproduced below: We set aside the Impugned Order. The revised Resolution Plan-Annexure P/6 may be processed by the Resolution Profess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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