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TMI Blog2023 (10) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the promoters are not ineligible in terms of Section 29A of the I B Code . Therefore, it is not necessary for the Committee of Creditors to find out whether the Resolution Applicant is ineligible in terms of Section 29A or not. In the impugned judgment, it can hardly be disputed that there is no discussion on the special circumstances other than the reference to judgment in Bafna s case. The impugned judgment is predicated on a broad reasoning as if ipso facto there is no need to call other proposals if it is an MSME. In view of the larger context it would have, we clearly observe and hold that this is not the correct position of law - This is more so as in the factual scenario of Bafna s case, the observations were made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T had put a question mark on the status of the entity as MSME on account of the certificate being procured after the process had began but in appeal as per the impugned order, the factual finding is that it was an MSME before the process began and thus the benefit of the MSME Act would be available to the said entity. 3. We may also note that the plan submitted by the respondent No.1 was held by the NCLT to be ineligible for consideration on account of the status of the respondent No.1 as a promoter as the entity was not an MSME and thus incurred the disqualification under Section 29(A)(e) of the said Code and an exception for MSME would not be carved out in the facts of the present case. However, on the finding being reached by the NCLA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant sought to invite other plans and thereafter e-voting took place. On the anvil of the results of e-voting to be declared, contempt proceedings were filed by respondent No.1 and the result of the e-voting process was stayed. The real controversy thus is whether the observations made in the paragraph Nos.32 and 34 of the impugned judgment can be sustained or not in the conspectus of the observations in Bafna s case (Supra) which is stated to have received imprimatur of this Court by the following order:- 1. No case is made out so as to interfere with the impugned order passed by the Tribunal. The appeal is, accordingly, dismissed. 2. Pending application(s), if any, shall stands disposed of. 7. We have been take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind out whether the Resolution Applicant' is ineligible in terms of Section 29A or not. 20. The 'Committee of Creditors' is to consider the feasibility, viability and such other requirements as has been specified by the Board. If it proposes maximisation of the assets and is found to be feasible, viable and fulfil all other requirements as specified by the Board, the company being MSME, it is not necessary for the 'Committee of Creditors' to follow all the procedures under the 'Corporate Insolvency Resolution Process . For example, if case is settled before, the constitution of the Committee of Creditors' or in terms of Section 12A on the basis of offer given by Promoter, in such case, all other procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 29A (c) (h) of the Code to a promoter. 10. The discussion proceeds to the aspect of Committee of Creditors (for short CoCs ) considering the feasibility, viability and such other requirements as have been specified by the Code and observes that if it proposes maximization of assets as feasible, viable and fulfills all requirements as specified by the Code, it is not necessary for the CoCs to follow all the procedures under the Corporate Insolvency Resolution process. The example given thereafter is, if a case has been settled before the Constitution of a CoCs or in terms of Section 12A of the Code on the basis of an offer given by the promoter, in such a case, the procedure for calling of applications of the resolution app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing before the CoCs and declare the results. 15. To that extent, the impugned order is set aside. 16. Needless to say all proceedings emanating from the premise of the aforesaid observations in paragraph Nos. 32 and 34, whether in the contempt proceedings or any other proceedings would dissolve and be set aside. 17. We could have put an end to the matter by the aforesaid order but having been persuaded by learned counsel for the respondent No.1 to give some hiatus time to the said respondent on account of the fact that he has submitted an OTS (One Time Settlement) proposal to the financial creditors and are hopeful of the acceptance of the same. It is also his say that the flat buyers are also on board but are only 15% of the CoCs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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