JUDGMENT :

SANJAY KISHAN KAUL, J.

1. Shree Aashraya Infra-Con Limited went into CIRP under the Insolvency and Bankruptcy Code, 2016 [for short “the Code”] and the appellant before us was appointed as the Resolution Professional. The Resolution Professional presented a plan before the National Company Law Tribunal, Bengaluru as propounded by the promoters and approved by the Committee of Creditors [COC] but in terms of the order dated 28.02.2023, the application was dismissed on the ground that the promoters could not have presented the plan. It is the say of the appellant before us that this has far reaching consequences for him and his role as the Resolution Professional as:

a) the appellant is ineligible to continue as a Resolution Professional;

b) the applicant is ineligible to be considered as Board is liquidator of the corporate debtor;

c) the case of the appellant is required to be referred to the Insolvency and Bankruptcy Board of India (IBBI) for further action in accordance with law on the ground that the appellant had erred in putting up a plan that was not in consonance with law for consideration of the adjudicating authority.

2. Since there was really no representation on behalf of the other side, we appointed Mr. Bishwajit Dubey, learned counsel as Amicus in the matter.

3. We have heard learned counsel for the appellant/Resolution Professional and the learned Amicus not only because it would affect the professional abilities of the appellant but because certain issues required adjudication by us, more so, in view of the impugned order relying on an earlier order of the National Company Law Appellant Tribunal in Digamber Anand Rao Pingle v. Shrikant Madanlal Zawar & Ors., Comp. App. (AT) (Ins.) No.43-43A/2021

4. There are two aspects to be examined out of the contours of the submissions:

Firstly: Whether the resolution applicant was disqualified under the primary conditions as specified under Section 29 A of the Code;

and Secondly: Whether the corporate debtor not having an MSME status at the time of commencement of CIRP proceedings would disqualify the Resolution applicant under Section 29A of the Code as benefit of Section 240A would not be available.

It is the say of learned Amicus that if the MSME certificate is obtained prior to the presentation of the plan such disqualification would not be incurred and benefit of the provision would be available.

5. Learned counsel for parties have taken us through Section 29A of the said Code. It has been pointed out that other sub-Clauses except Clauses (c), (g) and (h) which apply to promoters and guarantors are generic in nature. We reproduce the relevant provisions as under:

29A. Persons not eligible to be resolution applicant-

(C) at the time of submission of the resolution plan has an account, or an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as non-performing asset in accordance with the guidelines of the Reserve Bank of India issued under the Banking Regulation Act, 1949 (10 of 1949) or the guidelines of a financial sector regulator issued under any other law for the time being in force, and at least a period of one year has lapsed from the date of such classification till the date of commencement of the corporate insolvency resolution process of the corporate debtor:

Provided that the person shall be eligible to submit a resolution plan if such person makes payment of all overdue amounts with interest thereon and charges relating to non- performing asset accounts before submission of resolution plan:

Provided further that nothing in this clause shall apply to a resolution applicant where such applicant is a financial entity and is not a related party to the corporate debtor.

Explanation I – For the purposes of this proviso, the expression “related party” shall not include a financial entity, regulated by a financial sector regulator, if it is a financial creditor of the corporate debtor and is a rel