JUDGEMENT

(04.07.2023) NARESH SALECHA, MEMBER (TECHNICAL) 1. The present appeal has been filed under Section 61 of the Insolvency & Bankruptcy Code, 2016 (in short ‘Code’) against the Impugned Order dated 29.03.2023 (first order) in IA No. 30/2022 in CP (IB) No. 349/ALD/2018 passed by the Adjudicating Authority (National Company Law Tribunal, Allahabad Bench, Prayagraj), whereby the Adjudicating Authority rejected the IA filed by the Appellant challenging the Resolution Plan. The Appeal is also challenging the Adjudicating Authority’s another order dated 29.03.2023 passed in I.A. No. 3 of 2022 allowing the implementation of Resolution Plan without considering the Appellant’s case for settlement under Section 12A of the Code (second order).

2. Section 7 application, filed by sole Financial Creditor- Bank of India against the BB Foods Pvt. Ltd. (the ‘Corporate Debtor’), was admitted on 22.10.2019 and Corporate Insolvency Resolution Process (in short ‘CIRP’) was allowed to be initiated.

3. The Appellant is Promoter, Shareholder and Suspended Director of the Corporate Debtor and aggrieved by the both Impugned Orders, the present appeal has been filed before this Appellate Tribunal.

Page 3 | 13 4. We note that that the order dated 22.10.2019 for initiating the CIRP against the Corporate Debtor was challenged before this Appellate Tribunal, who granted interim stay on the operation of the said order, however finally this Appellate Tribunal rejected the Appeal of the Appellant on 28.02.2019 and the CIRP order dated 22.10.2020 of the Adjudicating Authority was upheld. It has also been brought out that the Appellant had challenged the judgment of this Appellate Tribunal dated 28.02.2020 before the Hon’ble Supreme Court of India who initially granted interim stay on 14.10.2020 but finally rejected the appeal of the Appellant on 17.08.2021. 5. Heard the Counsel for Appellant and perused the records made available including cited judgments.

6. Learned Counsel for the Appellant submitted that the Respondent No.

1 filed an application before the Adjudicating Authority for exclusion of period of time in which no work was progressed due to stay of this Appellate Tribunal as well as Hon’ble Supreme Court of India and the Adjudicating Authority vide order dated 20.09.2021 permitted exclusion of 409 days but no order was passed regarding excess period of 128 days on account of lockdown.

7. Learned Counsel for the Appellant stated that Respondent No. 1 filed I.A. No. 3 of 2022 seeking approval of the Resolution Plan and the same was challenged by the Appellant through I.A. No. 30 of 2022 on the ground that the Resolution Applicant was barred under Section 29A of the Code.

Learned Counsel for the Appellant submitted that after several hearings, the Page 4 | 13 Adjudicating Authority passed two separate orders, both dated 29.03.2023, whereby the Resolution Plan of Respondent No. 3 was approved and I.A objecting to approval of Resolution Plan filed by the Appellant was rejected.

8. Learned Counsel for the Appellant emphasised that the Resolution Applicant was ineligible under Section 29A of the Code since its Director who has been Managing Director of the companies allowed to be liquidated under UK Laws and therefore the Adjudicating Authority ought to have disqualified him to submit the Resolution Plan.

9. Learned Counsel for the Appellant submitted that since the Adjudicating Authority did not pass any specific order regarding exclusion of 128 days of lockdown, it was wrong on the part of Resolution Professional to have taken liberty of exempting 128 days upto 31.07.2020 on his own and therefore the Adjudicating Authority also erred in holding that the Resolution Plan was submitted within the stipulated timeline under Section 12 of the Code. Learned Counsel for the Appellant further submitted that the Adjudicating Authority did not consider offer of settlement given by the Appellant to the Committee of Creditors (in short ‘