JUDGMENT :

SUDHANSU JYOTI MUKHOPADHAYA, J.

1. Pursuant to an application filed by ‘M/s. Aries’ under Section 9 of the Insolvency and Bankruptcy Code, 2016 (“I&B Code” for short), ‘Corporate Insolvency Resolution Process’ was initiated against ‘M/s. Bafna Pharmaceuticals Limited’- (‘Corporate Debtor’), a Micro, Small & Medium Enterprises (‘MSME’, for short). The 3rd Respondent- Mr. Mahaveer Chand Bafna, Promoter of the ‘Corporate Debtor’ filed improved ‘Resolution Plan’ which was approved by the ‘Committee of Creditors’ and placed before the Adjudicating Authority (National Company Law Tribunal). By impugned order dated 1st February, 2019, the Adjudicating Authority approved the improved plan of the promoter of the ‘Corporate Debtor’ which is under challenge in this appeal.

2. Learned counsel appearing on behalf of the Appellants submits that ‘Saravana Global Holdings Ltd.’ along with Mrs. P. Shobha (Appellants herein) were interested to submit their ‘Resolution Plan’ but no opportunity was given to them to file the same.

3. According to the Appellants, the impugned order has been passed approving the ‘Resolution Plan’ without complying the mandatory provisions of the ‘I&B Code’. It was submitted that as per Section 25 (2) (h) of the ‘I&B Code’, it is the duty of the ‘Resolution Professional’ to invite prospective ‘Resolution Applicants’ who fulfil criteria laid down by him with the approval of the ‘Committee of Creditors’. Once the ‘Expression of Interest’ has been published under Regulation 36A and prospective ‘Resolution Applicants’ have been invited, the ‘Information Memorandum’ prepared under Section 29 of the ‘I&B Code’ shall be shared with them.

4. It was submitted that the Respondents have failed to follow the aforesaid procedure as prescribed under the ‘I&B Code’.

5. It was further submitted that the ‘Information Memorandum’ was prepared but it was not circulated. 2nd and 4th Respondents decided to defer the publication of ‘Expression of Interest’ and inviting prospective ‘Resolution Applicants’ which they could not have done away with the provisions entirely on account of the provisions being mandatory under the ‘I&B Code’.

6. Learned counsel appearing on behalf of 2nd Respondent- ‘Resolution Professional’ submitted that the ‘Committee of Creditors’ in its 3rd meeting held on 27th September, 2018, informed the members that the Draft Invitation for ‘Expression of Interest’ and submission of ‘Resolution Plan’ with eligibility details to be published in newspapers had been prepared and the same had already been circulated to all the members of the ‘Committee of Creditors’. The ‘Committee of Creditors’ members have expressed that the publication of ‘Expression of Interest’ may be deferred for the time being as there is an active consideration of ‘Resolution Plan’ with the ‘Corporate Debtor’ itself.

7. In the 4th ‘Committee of Creditors’ meeting which was held on 30th November, 2018, the reasons for deferring the issue of ‘Expression of Interest’ was discussed by the ‘Committee of Creditors’ members with reasoning and the issue pertaining to extension application before the Adjudicating Authority was discussed.

8. In the 5th ‘Committee of Creditors’ meeting held on 20th December, 2018, the ‘Resolution Professional’ was asked by the ‘Committee of Creditors’ members regarding the eligibility of the ‘Resolution Applicant’ (promoter of the ‘Corporate Debtor’). The ‘Resolution Professional’ confirmed the eligibility of the ‘Resolution Applicant’ being an MSME and eligible under 29 A of the ‘I&B Code’. The ‘Resolution Applicant’ (3rd Respondent) presented his plan to the ‘Committee of Creditors’, which was discussed in the meeting and unanimous decision was taken by the ‘Committee of Creditors’, relevant of which reproduced below:

“…..(1) CD (Resolution Applicant) to submit the full set of resolution plan again by 26th December, 2018 incorporating the further details required by the CoC members points.

(2) The Resolution Plan to be present