JUDGEMENT

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.’ (Corporate Debtor) for the resolution of a debt of Rs. 16,08,45,996/-. The said application was admitted on 22.01.2020 by the Adjudicating Authority (National Company Law Tribunal, Ahmadabad Bench) and an Interim Resolution Professional (IRP) was appointed. However, vide order dated 03.06.2020 the IRP was replaced by the RP.

2. The RP published Form-G to invite Expression of Interest (EOI) to submit the resolution plans and on 13.07.2020 a provisional list of Proposed Resolution Applicants (PRAs) was prepared and five days’ time was provided to raise any objection till 18.07.2020. The RP published the final list of PRAs on 28.07.2020 for submission of resolution plan which included the name of the erstwhile promoters of the Corporate Debtor. It is alleged that the Appellant, vide its letter dated 30.07.2020, raised objection about the ineligibility of the erstwhile promoters on the ground that they had given personal guarantee for the Corporate Debtor but the RP, vide email dated 12.08.2020, informed that Section 29A(h) of the Code do not apply in view of the fact that the Corporate Debtor is registered as MSME under MSME Act, 2006. It is alleged that the Appellant filed an application I.A. No. 514 of 2020 on 14.08.2020 for seeking a direction that RP cannot accept the resolution plan submitted by the erstwhile promoters because the Corporate Debtor does not have MSME status at the time of filing of the application under Section 9 of the Code and cannot take the benefit of Section 240A 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 on 06.01.2021, was rejected being bad in the eyes of law and was not maintainable.

3. On 13.01.2021, in the 12th Meeting of the CoC, the RP declared that the resolution plan of the erstwhile promoters has been approved and in respect of the order dated 06.01.2021, the CoC decided and issued a direction to the RP to seek clarification from the Adjudicating Authority regarding the ineligibility of the erstwhile promoters to submit the resolution plan in pursuance to which the RP filed a Pursis before the Adjudicating Authority on 16.01.2021 seeking clarification in respect of the order dated 06.01.2021.

4. While the Pursis was still pending, two applications came to be filed before the Adjudicating Authority i.e. I.A. No. 145 of 2021 by the Appellant for rejection of the application filed by the RP for approval of the resolution plan, inter alia, on the ground that the SRA was ineligible in view of Section 29A(h) of the Code and application I.A. No. 58 of 2021 was filed by the RP for seeking approval of the resolution plan submitted by the erstwhile promoters. Both the applications were taken up together by the Adjudicating Authority but I.A. No. 145 of 2021 was decided earlier then I.A. No. 58 of 2021. In I.A No. 145 of 2021 the following order was passed “Accordingly, I.A. No. 145 of 2021 is rejected an