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TMI Blog2023 (3) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... nivasan, Sr. Advocate along with Ms. Shruti Pandey, Mr. Palash Singhai, Mr. Atul Sharma, Advocate for R1/RP. Mr. Krishnendu Datta, Sr. Advocate alongwith Mr. Kunal Vyas, Ms. Anushree Kapadia, Ms. Ruchi Krishna Chauhan & Mr. Rajat Singh, Advocate for R2. Mr. Abhishek Anand, Ms. Nipun Gautam & Mr. Vaibhav Mendirata, for R3/CoC. JUDGMENT Per : Justice Rakesh Kumar Jain : The Appellant 'POSCO India Pune Processing Center Pvt. Ltd.' (Operational Creditor) filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') r/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short 'Rules') against the Respondent 'Poggenamp Nagarsheth Powertronics Pvt. Ltd.' (Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40A of the Code. The Adjudicating Authority, vide order dated 06.01.2021, observed that the Corporate Debtor at this stage cannot be treated as MSME and cannot take the benefit of MSME, in view of amendment brought vide notification issued on 01.06.2020 w.e.f. 01.07.2020 by taking its retrospective effect and admittedly on the date of filing of application under Section 9 of the Code the Corporate Debtor was covered under the criteria of MSME. Hence, the question of not accepting the resolution plan filed by the erstwhile promoters does not arise as the erstwhile promoters shall be ineligible under Section 29A of the Code to file the resolution plan. However, the application i.e. I.A. No. 514 of 2020, in which the aforesaid order was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and stands disposed of in terms of the above directions." 5. The present appeal has thus been filed by the Appellant to challenge the order passed in I.A. No. 145 of 2021 because if this appeal is allowed and it is held that the SRA was not eligible then the resolution plan submitted by the said SRA would automatically become redundant. 6. The main argument of the Appellant in this case is that the SRA was not eligible in view of Section 29A(h) of the Code. 7. Section 29A(h) is reproduced as under: - "29A(h) has executed a guarantee in favour of a creditor in respect of a corporate debtor against which an application for insolvency resolution made by such creditor has been admitted under this Code and such guarantee has been invoked b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Payable by POGGEN-AMP to POSCOIPPC, towards the Cost of Materials received. We (the Undersigned) also acknowledge that, as earlier agreed between both the Companies herein, POGGEN-AMP is paying / shall be paying to POSCO-IPPC Simple Interest at the Rate of 10.50% Per Annum on the balance Outstanding Dues, until payment of the entre Outstanding Dues, which is / will be in addition to the payment of entire Principal Outstanding Dues. Further, we (the Undersigned) being the Promoters / Directors of POGGEN-AMP, hereby give the commitment / assurance on behalf of POGGEN-AMP, as well as the commitment / assurance in our personal capacity, that POGGEN-AMP will pay the entire Outstanding Dues, as mentioned herein, of POSCO-IPPC along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e resolution applicant in the provisional list may be made alongwith supporting documents within five days from the date of issue of the provisional list i.e. up to 18.07.2020. The RP had complied with Regulation 36A(10)(11)&(12) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016 (Regulations) but no objection was filed by the Appellant. It is rather submitted that the Appellant never furnished the plan and was interested only in the disqualification of Respondent No. 2 as it wanted to drive the company into liquidation. It is further submitted that the letter dated 03.06.2015 is not a guarantee but it is only an intention to execute a personal guarantee in case of the happ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purposes of reversing the order in the application which has been allowed by the impugned order. 14. The other submissions made by the Appellant that vide the impugned order, the earlier order dated 06.01.2021 has been reviewed whereas it is argued by the Respondent that the said order does not discuss the letter dated 03.06.2015 or the provision of Section 29A(h) of the Code, therefore, there is no question of any finding which has been reviewed. 15. As regard res-judicata, it is submitted that the issue of guarantee was decided at the stage of admission whereas the case of the Respondent is that it was not a party, therefore, there is no question of any res-judicata. 16. After perusal of the record, we are satisfied that neither ..... X X X X Extracts X X X X X X X X Extracts X X X X
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