Mr. Suniel Hiroo Bharwani vs Deepak Advertisement & Marketing & Ors.

Appellant is the erstwhile CMD and Promoter of Corporate Debtor-Respondent No.2 Gourmet Renaissance Private Limited, an SME and Private Limited Company, a reputed entity that was inter alia involved in organizing premier sporting and lifestyle events such as IPL, Miss Diva, ISL, Miss India and having a strong footprint in the organized Retail Food and Beverage industry, engaged inter alia in catering operations, specialty restaurants, specialty products etc. A copy of the udyog Aadhaar Memorandum, a twelve-digit Unique Identification Number provided by the Ministry of Micro, Small and Medium Enterprises, Government of India for micro, small and medium enterprises, issued in the name of Appellant bearing No. MH19F0145436.

ii) The Respondent No.1, Deepak Advertisement & Marketing is an outdoor Publicity & Hoardings contractor, primarily engaged in outdoor media communications by erecting hoardings and advertisements in Mumbai. The Respondent No. 2 Company, an MSME, is represented before this Tribunal through its Insolvency Resolution Professional who was chosen by the Committee of Creditors (CoC) constituted pursuant to an order dated 11.03.2019 passed by the Adjudicating Authority. The Respondent No. 3, The Nasik Merchants Co-operative Bank Ltd., Nashik (hereinafter referred to as "NAMCO") is a Multistate Scheduled Bank that in the usual course of its business, lent certain sums to Corporate Debtor and went to have the largest representation on the Committee of Creditors. On 28.06.2019, the aforementioned IRP, Mr. Alkesh Rawka furnished FORM AA written consent to act as Resolution Professional of Appellant pursuant to which was appointed as the Resolution Professional vide a resolution passed by the CoC on 04.07.2019. The IRP subsequently filed an Application under Section 33 of the IBC code, 2016 read with Rule 11 of the National Company Law Tribunal Rules, 2016 praying for instituting Liquidation Process against Respondent No. 2 Company. The Impugned order dated 05.08.2021 passed by the Ld. Adjudicating Authority in the said Application, IA. No. 244 of 2021 in C.P. (IB) No. 1661/MB/2018 is being challenged herewith vide the present Appeal before this Tribunal.

iii) A Petition under section 9 of the Insolvency and Bankruptcy Code, 20l6 was instituted by Respondent No. l on the alleged failure of Respondent No. 2 Company to pay Respondent No.1 Media Contractor a sum of Rs. 13,91,744/-. The two entities had entered into a contract on 04.05.2017 for display of hoardings at two outdoor locations in Mumbai. The Respondent No. 2 Company allegedly defaulted on payment of outstanding amounts to Respondent No. l concern on multiple occasions. A computation of the amounts involved is provided hereunder:

In addition to the above stated invoices, the Respondent No. 1 concern alleged that there were seven (7) additional invoices for an amount of Rs. 6560/. The Respondent No. 1, Operational Creditor also alleged that amounts due to be paid in relation with Bill No. 105712017-2018 dated 05.05.2017 and 1062/2017 dated 08.06.2017 remained unpaid. Respondent No. l thus claimed that an amount of Rs. 13,91,744/- in addition to interest @ 18% was due from 22.06.2017 to 13.09.2017. A demand notice for the same was issued by operational creditor on 05.02.2018. Subsequent to initiation of proceedings before the Adjudicating Authority, Respondent No.1-Operational Creditor, on 13.02.2019 filed written communication of the proposed Interim Resolution Professional, Mr. Naren Shah. In their Affidavit in Reply dated 22.11.2018, Respondent No. 2, Corporate Debtor disputed the allegations of Respondent No. l and stated that there were persuaded to carry on with the contract despite communicating to Respondent No. 1 concern that they did not intend to utilize the hoardings any further. Further, Respondent No. 2 - Corporate Debtor emphasized that the defaults were not wilful and on account of unexpected force majeure occurrences such as demonetization, restrictions on sale of liquor, introduction of GST etc. Respondent No.2 -Corporate Debtor could not provide a definitive timeline to settle unpaid amounts qua Respondent No. 1 Operational Creditor until the implementation of a comprehensive resolution plan.

iv) Admitting the Section 9 Petition for initiation of CIRP, the Adjudicating Authority inter alia declared a moratorium under Section 14 of the I&B Code, 2016 directing Corporate Debtor to refrain from acting to alienate in any way, its assets legal rights and also forbid any action amounting to recovery/foreclosure/ enforcement of any security interest created by Corporate Debtor in respect of its properties. The Adjudicating Authority declared that the Order of Moratorium would be in effect till culmination of the resolution process, or an Order is passed approving liquidation of Corporate Debtor, Respondent No. 2 under relevant provisions of the IBC. It also proceeded to appoint Mr. Naren Seth as the Interim Resolution Professional to oversee functions delegated under the I&B Code, 2016. Pertinently it failed to notice that Appellant herein could not be excluded from participation the CIRP on account of him being the Chairman and MD of Corporate Respondent, an entity with a MSME certification. Public announcements by the IRP were carried in local newspapers in accordance with the conditions contained in Section 13 and Section 15 of the IBC, 2016. The last date for submissions of claims qua Respondent No. 2 Corporate Debtor to be 24.03.2019. Pursuant to the submission of Claims and verification thereof from Operational and Financial Creditors vide Form B and Form C respectively, a report certifying the constitution of a Committee of Creditors (COC) was filed with the Adjudicating Authority in compliance with Section 2I of the IBC and regulation 17 (1) C of the I&B Regulations, 2016. The Committee of Creditors had their preliminary meeting on 10.04.2019 wherein they perused the Submission of Claims by Operational and Financial Creditors as on the cut-off date i.e., 25,03.2019 and the amounts admitted by Respondent No. 2-Corporate Debtor. The details of the Committee of creditors and their Voting Shares are contained herein under.

The Committee also resolved to retain and reappoint Mr. Naren Shah as the Resolution Professional and ratified his remuneration. Further, the Committee assented to operation of the Current Account of Respondent No. 2 Corporate Debtor at Respondent No. 3, NAMCO by Mr. Naren Seth to meet CIRP expenses. The Respondent No. 3, NAMCO expressed it unwillingness to finance the estimated future CIRP costs and the COC authorized the Resolution Professional to raise funds for the same. Pertinently, Appellant when asked about his plans for repayment conveyed his intention to submit a comprehensive plan by the next meeting.

On 28.06.2019, Resolution Professional Mr. Alkesh Rawka vide a letter to the Committee of Creditors consented to being appointed as Resolution Professional as provided under Regulation 3(1A) of the IBC. The second meeting of the CoC was held on 01.07.2019 wherein only the matter for consideration was the CIRP costs, the decision of which was deferred to the next meeting. The proposed plan by Appellant alluded to in the first meeting of the CoC was thereafter never discussed by the CoC despite the fact that Appellant would not fall under the category of persons more fully described in Section 29 A of the IBC which bars certain persons from being eligible as Resolution Applicant on account of Section 240-A(1) acquiring primacy and overriding the former and stating that notwithstanding anything to the contrary, that provisions of Clause (c) and (h) of Section 29-A shall not apply to the resolution applicant in respect of CIRP of MSME's. The third meeting convened at the behest of Respondent No.3, Mr. Alkesh Rawka, was appointed as Resolution Professional, replacing the incumbent Mr. Seth. The proposal was approved by 99.91% of the Committee.

vi) In the fourth CoC meeting held on 07.07.2019, due to the fact that CIRP would in all likelihood extend beyond the prescribed 180 days, approval was accorded to Resolution Professional to approach the Adjudicating Authority seeking extension after the 180 days period from the commencement of CIRP (i.e., 07.09.2019) in line with Section 12 of the IBC. Subsequently M.A 3077/2019 was placed for consideration before the Adjudicating Authority, wherein RP of Respondent No.2 sought a further 90 days for closure of the CIRP. In its Order dated 18.09.2019, the Ld. Adjudicating Authority accorded sanction to M.A 2434/2019 wherein the replacement of RP's was prayed for. The Ld. Adjudicating Authority recorded the reasons for replacement as failure of then RP to prepare an Information Memorandum and the contention that there was no substantial work done by him. During the originally envisaged 180 days' time frame provided for Resolution, no concrete measures by the COC were taken to resolve the crisis of Corporate Debtor and substantial time was squandered. On 05.10.2019, the Fifth Meeting purportedly convened to appoint Registered valuers and Forensic Auditors was concluded without carrying out the appointments. The Appellant, debilitated by an illness and recovering in the hospital was not present. The COC approved of the proposal to publish the Invitation of Expression of Interest for Resolution Plans regarding Respondent No.2 Corporate Debtor. On 1111.2019, as a precursor to its formal union to as a minority member of the CoC, M/s Invent Arc, in response to queries from the CEO of Namco, Mr. Deepak Thakur, detailed out the payments to the tune of over Rs. 10 crore that it made to unsecured financial creditors, operational creditors and workmen who had be left in the lurch in view of the Orders of the Adjudicating Authority. The prospective Resolution Applicant, Mr. Atul Kumar Gupta expressed concern regarding the serious medical ailment plaguing Appellant and revealed that the forensic financial audit was been undertaken and that he hoped to determine the extent of statutory liabilities. Appellant craves leave to refer to and rely upon the same when produced. In the Sixth Meeting of the COC held on 16.11.2019, cognizance was taken of the updated claims received by the IRP and the COC was reconstituted, reflecting the changes in the claims. Two claimants assigned the entirety of their claims in favour of IWs Invent Arc. The recast list of creditors stood as follows:

Details of the Committee of Creditors, also reconstituted, are provided hereinunder:

vii) The new entrant to the COC, Invent Arc Pvt. Ltd was represented by Ms. Yamini Surana and its COO, Mr. A.K Gupta. Invent Arc Pvt. Ltd. had acquired all the liabilities owed by the Corporate Debtor to RBI licensed NBFC's under the assignment of debt mechanism and went on to settle small creditors and played a pivotal role in the Insolvency Resolution Process by engaging with multiple domain experts and partook in facilitating the legal expenditure of the corporate debtor in the multitude of litigations that arose during the Resolution Process. On account of alleged lapses by Corporate Debtor regarding statutory compliances, the regularization of the same was deferred for a later date after a seriously Appellant submitted that he would provide records pertaining to the Respondent No. 2 Company in a weeks' time. On 11.11.2019, Mr. Atul Kumar Gupta provided certain details pertaining to measures adopted and undertaken by Invent ARC in a letter to the Chairman of NAMCO, inter alia highlighting the fact that Invent ARC had already settled liabilities to the tune of Rs.10 Crores. The Resolution Applicant expressed serious concerns over the serious illness of Appellant herein. The Appellant craves leave to refer to and rely upon the same when produced the threat to move an Application under Section 19(2) by majority members of the CoC and RP was made in every subsequent gathering of the CoC and was used as leverage to relegate Appellant herein to the side-lines and as evidenced by subsequent events and records, Appellant was always considered persona non grata, expressly contravening Section 240 (1) (A) of the I&B Code,2016. The COC was informed of the appointment of Statutory Auditors of Respondent Corporate Debtor, The COC further resolved to publish Form G inviting expression of interest from prospective Resolution Applicants, which were subsequently published on 19.11.2019 in two local newspapers. In view of the resolution to publish the expression of interest from Strategic or Financial Buyers, a decision to approach the Ld. Adjudicating Authority for a further extension was taken or to proceed with liquidation was kept in abeyance till the seventh meeting of the COC. The meeting also dealt with the appointment of registered valuers and a forensic Auditor. The COC inter alia resolved to reduce the notice period for subsequent meetings from 3 days to 24 hours.

viii) Pursuant to publication of Form G in the local newspapers, an Expression of Interest (EOI) was submitted by Mr, Atul Kumar Gupta on behalf of Invent ARC Private Limited. Subsequently, Invent ARC Private Limited filed a Miscellaneous Application with the Ld. Adjudicating Authority intimating the takeover of some of the loans of Respondent No.2, Corporate Debtor. On 18.12.2019, the COC met for the Seventh time, but Mr. Atul Kumar Gupta was absent from the same. The COC inter alia discussed the failure of Appellant to provide requisite documents relating to statutory compliances, the appointment of values and forensic Auditor, and the Resolution Plan submitted by Mr. Aul Kumar Gupta. It was resolved to allow the Resolution Plan after affording revision of Eligibility Criteria. The Evaluation Matrix and the Request for Resolution Plan ("RFRP") was circulated and ratified by the COC. The COC deferred the discussion of proposed Application against Appellant under Section 19(2) of the Code. The Miscellaneous Application No. 2434/2019 filed by IRP herein seeking extension of CIRP before the Ld. Adjudicating Authority and the same was dismissed on 02.01.2020 stating that "Under no circumstances, the extension of CIRP period be granted twice. Earlier the Applicant has come forward for extension of CIRP Period and the same was granted for 90 days. This Application is filed seeking extension of further 90 days which is not permissible under law".

ix) In view of an unforeseen demand Order by the Income Tax Department amounting to Rs. 30 Crore to Corporate Debtor, Respondent No. 2, Mr. Atul Kumar Gupta, in a letter dated 14.01.2020, sought time till 25/26^th January, 2020 for submission of a revised Resolution Plan. The Prospective Resolution Applicant Mr. Gupta stressed on the fact that in the meeting at Respondent No. 3 NAMCO's headquarters on the 7^th January, 2020, he had expressed his inability to come up with a Resolution Plan by the 15^th January, 2020 as demanded by Respondent No. 3 NAMCO. He appealed to the fellow members of the COC to consider the changed circumstances on account of the Income Tax Demand Order pertaining to Respondent No. 2, Corporate Debtor and extend the time to the proposed dates. The aforementioned dates proposed by Mr. Atul Kumar Gupta were rejected by the COC who demanded that a Resolution Plan be submitted by 21.01.2020. In light of this unilateral rejection, Mr. Atul Kumar Gupta was constrained to send another appeal to the Chairman of Respondent No.3 NAMCO requesting the lenders to consent to a revised date especially in light of a further Show Cause Notice indicating enhanced penalties on Corporate Debtor. Mr. Gupta further pointed out that the date for submission of the Resolution Plan set unilaterally by the lenders to be 21.01.2020 was not communicated with him and therefore pointed out his inability to adhere to the aforesaid timeline set out by the lenders. He urged caution on account of the intricacies involved and to be considered in the IBC and requested that a mutually agreeable revised date be provided to consider the proposal.

On 04.02.2020, the Eighth Meeting of the COC was convened and inter alia, the Miscellaneous Applications filed by Invent ARC Private Limited and RP on 04.12.2019 and 23.01.2020 respectively for the extension of CIRP before the Ld. Adjudicating Authority were decided to be clubbed as the reliefs sought were identical. The Appellant pointed out that alleged lapses on part of him, perceived as non-cooperation by the majority in the CoC and IRP was on account of his chronic ill health and that he had extended all possible assistance to RP. It was resolved at the meeting that the timeline for the Resolution Plan proposed by Prospective Resolution Applicant, would be extended till 11.02.2020. The COC resolved to proceed with liquidation in case the Resolution Plan was not submitted in time and proposed that Mrs. Vaishali Arun Patrikar oversee the proposed liquidation of Respondent No. 2, Corporate Debtor. Alleging that the Resolution Plan put forward by Prospective Resolution Applicant dated 11.02.2020 did not comply with Section 30 of the Code, read with Regulations 36B, 37 ,38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons), RP representing Respondent No. 2 herein in a mail dated 13.2.2020 informed Prospective Resolution Applicant that it was not acceptable. A revised plan dated 18.02.2021 submitted by Prospective Resolution Applicant was rejected by RP representing Respondent No. 2 on the same grounds mentioned herein above vide a mail dated 27.02.2020, Thereafter, in its Order dated 27.2.2020, the Ld. Adjudicating Authority allowed MA 58I of 2020 seeking exclusion of 72 days on account of replacement of RP filed by Resolution Professional representing Corporate Debtor herein and directed that the CIRP period will end on 03.04.2020. Disposing MA 3693 of 2019, the Ld. Adjudicating Authority directed Prospective Resolution Applicant to file a Resolution Plan within 10 days of passing the Order and directed COC to take a decision regarding the same two weeks thereafter.

xi) On 04.03.2020, M/s SMMP & Associates shared details of the financial details including the list of creditors paid off by the Prospective Resolution Applicant, M/s Invent Arc and the remaining unpaid creditors who would have to be paid under terms of Section 53 of the IBC in a mail to members of the CoC. A perusal of the details thus provided indicates that Appellant herein was to undertake a substantial haircut and forego monies amounting to Rs. 744,150,4031/-. Prior to the scheduled 9^th meeting of the CoC, the Prospective Resolution Applicant transmitted the points proposed to be tabled at the meeting of the CoC. Inter alia, it clearly details the proposed terms of payment including redemption of outstanding amount of Rs. 3 Crore in 360 days but payment terms of the Rs. 24 Crore Security Receipts would be redeemed within 24 months after the first year i.e 3 years in total. The communication via WhatsApp dated 18.03.2021 was sent to members of the CoC including the Chairman, CEO, and the legal advisor of NAMCO Mr. Rahul Totala. Meanwhile, in response to sustained and recurrent threats to file an Application under Section l9(2) of the Code, in a detailed, emphatic, and unequivocal letter address to this Chairman, COC dated 18.03.2020, Appellant herein expressed extreme anguish at the prejudicial behaviour and non-cooperation of RP. Pertinently, the Appellant appealed to table and record the letter during the Ninth meeting scheduled to convene on 1 8.03.2020. Inter alia he detailed numerous instances of extremely biased conduct of RP and several shortcomings in the discharge of RP's roles and responsibilities. Appellant was constrained to step into shoes of RP and perform duties that normally would been in the realm of Resolution Professional.

xii) Pursuant to Order dated 27.02.2020 passed by the Ld. Adjudicating Authority a revised Resolution Plan was submitted by Prospective Resolution Applicant, Mr. Atul Kumar Gupta on 01.03.2020. A response regarding observations pertaining to the plan was sent on 09.03.2020 and 11.03.2020 informing Mr. Gupta that the next meeting of the COC will likely be held on 18.03.2020. In the Ninth Meeting convened on 18.03.2020, the Chairman demanded that the plan should have been submitted in person and not through emails. Alleging inter alia inconsistencies in the payment term, the Chairman sought further details and additional compliances. Mr. Atul Kumar Gupta provided clarifications sought for. It was then decided that a fine print of the Resolution Plan shall be submitted by Prospective Resolution Applicant by 20.03.2020 and the same had to be submitted physically despite the onset of Covid-l9 and the accompanying restrictions. The proposed meeting on 21.03.2021 was postponed on account of Covid Restrictions. Thereafter, the meeting i.e., the extended Ninth COC meeting could be held on 30.09.2020. In a letter to the CEO of NAMCO dated 22.04.2020, Prospective Resolution Applicant Mr. Atul Gupta expressed satisfaction with the proposed plan that had been agreed to by all members of the CoC in principle. He appreciated the assistance and cooperation rendered by Appellant Mr. Suniel Bharwani and inter alia pointed out that the plan submitted by M/s Invent ARC was the onlv feasible one submitted so far. The letter prayed for proceeding with the matter in a logical and practical manner and avoiding trivial squabbles that would derail the process resulting in all round hardships. Mr. Atul Gupta also requested the CEO to direct members of the team to provide all possible help/details etc that could be incorporated in the final plan.

xiii) In his response vide a mail dated 18.09.2020, to queries raised by the Prospective Resolution Applicant on the proposed Resolution Plan, the legal advisor of NAMCO, Mr. Rahul Totla attempted to discredit the plan by pointing out purported acts of noncompliance/nonadherence by the Prospective Resolution Applicant. The RA stressed that ARC Invent being both a Financial Creditor as well as a Resolution Applicant, placed emphasis on clearing the liabilities of NAMCO on a priority basis, over and above the Resolution Applicant's own claims. However, the legal advisor viewed this as contradictory to Regulations 30 and 38 (1) (b) of the I&B Code, 2016. The Resolution Plan formulated by M/s ARC Invent unequivocally and unambiguously stated that the term of implementation would be 36 months from the date of acceptance of the Resolution Plan by the Ld. Adjudicating Authority in accordance with the provisions contained in Regulation 38(2)(a) of the IBC. There was no semblance of ambiguity in this elucidation. Pertinently, the response to this as seen in Paragraph 4 of the mail dated 18.09.2020 was marked as 'Complied' by the legal advisor of NAMCO. The Prospective Resolution Applicant also stressed that Respondent No. 2, Corporate Debtor was an MSME and all regulations within and without the IBC Code, 2016 supports the unbiased revival of an MSME. The RA intended to retain the services of Appellant herein, Mr. Suniel Bharwani as an external professional consultant during the term of implementation of the plan. It was pointed out that Appellant and his family had invested a huge amount of capital in the Corporate Debtor, dwarfing the amount owed to NAMCO Bank but was still not accorded any compensation for his investment, skillset and risks ploughed into setting up and running the Corporate Debtor. The Resolution Applicant underscored the untiring full and complete support rendered by Appellant herein despite his limitations and precarious health condition. The RA pointed out that it was imperative to utilize the knowhow, experience and intellectual properties vested in Appellant Mr. Suniel Bharwani and pointed out that it was due to the unfortunate misjudgement of the former top brass of NAMCO that Appellant, Mr. Bharwani was designated as a wilful defaulter despite infusion by him of substantial equity and noteworthy achievements of Corporate Debtor when it was helmed and managed by Appellant herein. The RA stressed that the actions of the bank in branding Appellant as a wilful defaulter effectively barred him from coinvesting in the Resolution Plan and acted as a barrier for other financial institutions to step in and take over the entire amount owed to NAMCO. Needless to say, this was in contravention to Section 240(A) (1) of the Code that specifically provided certain privileges to MSME entities. However, the legal advisor chose to overrule this portion of the plan stating that there could be no preconditions for the implementation of the plan.

xiv) The Legal Advisor assented to setting up of a 3 member Implementation and Monitoring Committee in accordance with Regulation 32(2)(c) of CIRP regulations to monitor and ensure compliance of the proposed plan until complete execution of the proposed plan i.e. 36 months as per the Resolution Plan. However, he expressed scepticism on the feasibility and viability of Resolution Applicant's plans to monetize land assets and remain entrenched in the F& B Business. Mr. Atul Kumar Gupta had already clarified that he had taken an informed decision to invest in the revival of the corporate Debtor and had ensured the participation of Appellant herein, linking him to specific performance of certain measurable parameters amongst other aspects within the purview and knowledge of Appellant. The Legal Advisor however found this proposal noncompliant with provisions set out in Regulations 38(3)(d) and 38(3)(e), contingent to approval from the Ld. Adjudicating Authority. The document addressed other concerns that were raised, and the Resolution Applicant inter alia undertook to ensure compliance with the Regulations of CIRP and the same was accepted by the Legal Advisor in principle. The RA also pointed out that there was unequivocal agreement between him and NAMCO regarding the settlement of Rs.25 crores as outstanding Principal owed to NAMCO and the same had been adequately provisioned by the Auditor of Corporate Debtor. The RA was amenable to suggestions by the COC regarding changes to the proposed terms of provision of Performance Guarantee and pointed out that the plan was accorded in principle verbal acceptance by the Chairman of NAMCO. The Resolution Applicant pointed out that all purported contradictions were actually expounded in detail in the fine print of the Resolution Plan and that the settlement of amounts in accordance with Regulations 38 (1) A & (2) (A) were to be 100% of the outstanding amounts.

xv) The Prospective Resolution Applicant also addressed a letter dated 18.09.2020 to Mr. Vijay Sane, the Chairman of the CoC at that point in time inter alia brining to his attention the challenges and the devastation wrought by the prevailing Covid-l9 Pandemic. Reference was made to the recommendations of the M.V Kamath Committee for measures to mitigate the effects of the pandemic and steps to revive MSME's and a request was made for extension of repayment tenure by a further 12-24 months. The RA requested for the passing of a resolution to revoke the wilful defaulter tag unfairly invoked upon Appellant herein so as to involve him in the resolution process and enable him to invest in the revival of Corporate Debtor. It was pointed out that this would pave the path for takeover of the outstanding loans by competent banks or other financial institutions and expedite the payment of outstanding dues in full to NAMCO. On 22.09.2020, the Prospective Resolution Applicant was constrained to voice out several procedural discrepancies, acts smacking of malafide intentions and prejudicial actions indulged in by the RP and the legal counsel that belittled the entire CIRP in a detailed mail addressed to Mr. Sane, Chairman of the CoC. The Resolution Applicant had in fact submitted the proposed Resolution Plan within the specified timeline in the March 2020 and provided clarifications to queries raised by the RP vide a mail dated 04.08.2020. However, the Bank responded through its legal advisor only on 18.09.2020, just one day prior to a meeting with Appellant herein that took place at the NAMCO headquarters at Nashik. The RA was asked to furnish his response prior to a proposed meeting of the CoC scheduled to be held on 23.09.2020 despite knowing that the time provided for preparing the response was highly inadequate and that the RA was crippled due to lack of support staff on account of pandemic related work restrictions. Despite the challenges, Mr. Atul Kumar Gupta pointed out that he had already in compliance with 33 of the 55 queries raised by the Resolution Professional and that the rest of the queries required either clerical rectifications or were merely repeated questions that were already addressed elsewhere. He pointed out that it was unfair on the part of the Resolution Professional to unexpectedly raise a demand for a detailed business plan despite the Resolution Professional not providing a signed balance sheet indicating the current financial status of the Corporate Debtor. Addressing a number of issues dealing with questionable ethical decisions of the Resolution Professional, the Resolution Professional beseeched the CoC to refrain from turning a blind eye to multiple instances of wrongdoings on part of the Resolution Professional that would ultimately be detrimental to the wellbeing of all stakeholders including NAMCO. Mr. Gupta again wrote a letter to the Chairman of the CoC on 23.09.2020 and on 29.09.2020 requesting him to treat and discuss the matter threadbare and on its merits with the other members of the CoC inter alia reminding hm that the option of liquidation is not financially viable for all stakeholders. He again pointed out that Resolution Professional had hitherto desisted from making any reference to a business plan but had suddenly sought to treat the non-existent plan as pivotal to the successful implementation of the proposed Resolution Plan. The Resolution Applicant hoped that saner minds would prevail, and a positive outcome could be achieved by cooperation from all concerned personnel. The Resolution Applicant stressed that he had already demonstrated his bonafides and earnestness in resolving issues and anomalies relating to the Corporate Debtor and had invested a substantial sum in the process.

xvi) In a mail dated 30.09.2020, the Resolution Professional representing Corporate Debtor made certain critical observations to the logical reworked Resolution Plan submitted by Mr. Atul Kumar Gupta. The Resolution Professional alleged that the payment waterfall mechanism and the plan being conditional of retaining Appellant herein as consultant was noncompliant. Further objections were raised to the planned land monetization and Security Receipt Structures proposed in the Resolution Plan. On 01.10.2020, Prospective Resolution Applicant, Mr. Atul Kumar Gupta acceded to certain changes pertaining inter alia to the Performance Guarantee and Security Receipts structure and also provided clarifications on issues such as the sale of land, tax liabilities and expected timelines for obtaining permissions from statutory and regulatory authorities. However, he reiterated that the continuation of Mr. Suniel Bharwani, Appellant herein, as consultant was non-negotiable, and he indicated that the matter would be put forth to the Ld. Adjudicating Authority. He requested NAMCO to issue a letter declassifying Mr. Bharwani as a wilful defaulter as his classification as such was solely on account of errors by predecessors of the current management personnel helming NAMCO. He pointed out that this would not only speed up the turnround of the MSME but also allow equity participation of Appellant and persons connected with him. A copy of the email dated L10.2020 is annexed herewith in the list of additional documents accompanying the present petition and being filed with the leave of this Hon'ble Tribunal.

xvii) In a letter dated 08.10.2020, Prospective Resolution Applicant, Mr. Atul Kumar Gupta informed the Chairman, CoC that submissions pertaining to clarifications of the revised Resolution Plan could not be proceeded with on account of various reasons including a Sales Tax summons issued to Respondent No.2-Corporate Debtor that would result in an enhanced tax liability. Raising a number of pertinent issues that cropped up or needed addressing, Mr. Atul Kumar Gupta objected to the stance of the Process Advisor who refused to hear Appellant. He pointed out that it was imperative to have the support and involvement of Appellant in the ongoing CIRP and also requested defining and firming up of CIRP costs prior to the formal submission of the Plan. Thereafter, the extended Ninth Meeting on the CoC was held on 0r.10.2020 and 12.10.2020. A resolution was passed to file an Exclusion Application before the Ld. Adjudicating Authority and the reworked Resolution Application was to be filed after another 8 days. An Application No. IA 2215 of 2020 was subsequently filed before the Ld. Adjudicating Authority seeking exclusion time period of l0 days. The Ld. Adjudicating Authority on 07.01 .2021 heard and passed an Order granting an exclusion of 10 days. The Ld. Adjudicating Authority observed that the CIRP would normally come to an end on 17.0I.2020. In the Tenth Meeting dated 12.01.2021, CoC inter alia decided to extend the final CoC meeting to 16.01.2021. In a letter dated 14.01 .2021 addressed to the Resolution Professional, the Resolution Applicant placed on record a formal protest against the refusal by the Resolution Professional to share details of the valuation details of the Corporate Debtor which was crucial to fine tuning of the Resolution Plan and that was being withheld for malafide reasons. The Resolution Applicant also expressed dismay at the belated announcement by the Resolution Professional of the Order dated 07.01 .2021 passed by the Ld. Adjudicating Authority in IA 2215 of 2020 that was communicated to the Resolution Applicant only on 12.01.2021. The Final Resolution Plan drawn up by Prospective Resolution Plan was submitted on 15.01.2021. The comprehensive turnaround plan to pay down all creditors within a 36 months period from the approval date by the Adjudicating Authority, envisaged Invent ARC acquiring the entirety of Respondent No. 3 NAMCO's loan for Rs. 25 Crores. Invent ARC proposed to pay Rs.1 crore through invocation of Bank Guarantee or via Bank Draft or electronic transfer within 30 days from the receipt of the Resolution Proposal by the Adjudicating Authority, pay a further Rs. 3 Crore within 12 months of the approval and the remaining Rs. 21 Crore in a space of 36 months as set out in the Financial Section of the Resolution Plan. The plan detailed the various compliances in consonance with Section 30 of the I &B Code, 2016 and Regulation 37 & 38 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Proposal for Corporate Persons). It also contained the future roadmap for restructuring Respondent No. 2 Corporate Debtor. ARC Invent Pvt Ltd. also proposed infusion of fresh funds to rejuvenate ailing Corporate Debtor. The extended Tenth Meeting took place on 16.012021. The roadmap and intricacies of the Plan were dealt with in detail by Resolution Applicant.

xviii) Mr. Umesh Biyani, consultant confirmed that most of the infirmities called out in the earlier meetings had been dealt with by Resolution Applicant. Subsequent to detailed observations made by Mr. Biyani, he submitted that Prospective Resolution Applicant had the capacity to implement the Resolution Plan. He also stated that the Resolution Plan is not entirely non- compliant, and it can be accepted by the CoC as many of the important observations have been taken care of in the plan. However, Respondent No. 3 NAMCO put forward conditions that would act as a bar on any logical Resolution. In view of the abrupt volte face by Respondent No. 3 NAMCO who were already aware of the proposals as the same had been discussed with them in detail, the new conditions put forward by the Bank were not acceptable by Resolution Applicant. Prospective Resolution Professional requested Mr. Sanjay Bagul, AGM of Respondent NAMCO Bank to discuss the proposal received from the Resolution Applicant Mr. Sane, chairperson of the Bank and consider the same- After discussion, Mr. Bagul informed that the proposal put forward by Mr. Gupta was not acceptable to the Bank and the Resolution plan stands rejected. It is pertinent to mention that terms elucidated in the Resolution Plan submitted was as per the terms discussed and deliberated with the Chairperson of the CoC a few hours before the last CoC meeting and that the Chairperson had not indicated any disagreement with the Proposal. Had he done So, Resolution Applicant would have revised the terms that attained finality on account of it being the last and final meeting of the CoC to discuss the plan. Furthermore, the Ld. Adjudicating Authority granted time whilst passing the order in IA 2215 of 2020 on 07.01.2021 solely on the ground that the CoC was not in a position to consider the revised plan and hence requested time but rather unsurprisingly, the CoC did not wait to discuss changes with Resolution Applicant when the revised proposal was sent on 15.01.2021 indicating that this was a premeditated tactic to torpedo the CIRP. In view of the rejection of the Proposed Resolution plan, the CoC resolved to proceed with Liquidation of Corporate Debtor pursuant to Section 33 of IBC on going concern basis pursuance to Regulation 39(c) of CIRP Regulations, 2016 and that the Liquidator could at first explore the sale of Corporate Debtor as Going Concern. Mrs. Vaishali Arun Patrikar was appointed to act as Liquidator. Thereafter, IA. No.244 of 2021 was moved praying for initiation of the Liquidation Process and for appointment of Mrs. Patrikar as Liquidator of Respondent No. 2 Corporate Debtor.

xix) The Appellant was incapacitated on 27.12.2020 on account of a stroke. Acute and extensively dispersed hematoma was indicated in the left half of midbrain, which resulted in Appellant being admitted for a fortnight at the hospital and he was discharged from the Sir. H. N Reliance Foundation Hospital and Research Centre only on 06.01.2021. He was thereafter advised rest for another 16 weeks to allow for recovery and rehabilitation. On 05.08.2021, the Ld. Adjudicating Authority allowed IA. No. 244 of 2021 stating that it found no reason to take a contrary view in terms of Section 33 (1) (a) of the Act and that it had no option than to pass an order for liquidation of the Company in the manner laid down in Chapter III of the Code. The Ld. Adjudicating Authority inter alia directed that Ms. Vaishali Arun Patrikar act as Liquidator of Corporate Debtor and lifted the Moratorium declared under Section 14 of the I& B Code, 2016. Hence this Appeal.

19.11.2019 Expression of Interest was published by Respondent No. 2.

02.12.2019 Email was communicated by Respondent No. 2 to the Prospective Resolution Applicant and had stated that 03.12.2019 was the last date to submit the EOI and still no EOI was received. Further, it was also intimated by the Respondent No. 2 that 05.12.2019 was the last date of CIRP proceedings and thereafter the Corporate Debtor would go into liquidation. The Respondent No. 2 received an email by the Prospective Resolution Applicant regarding intention to share the EOI in night.

03.12.2019 Respondent No. 2 sent an email to Prospective Resolution Applicant to share the EOI by the end of the day which was also received. Further after due verification it was found by Respondent No. 2 that Financial of West End Investments and Finance Consultancy Private Limited instead of ARC Pvt. Ltd. were submitted and did not meet the eligibility criteria as set out by the committee of creditor and same was duly communicated to the Prospective Resolution Applicant. Further second opportunity was provided to Prospective Resolution Applicant to submit EOI and this time they provided partial records financials of ARC Private Limited and same was found ineligible by the Respondent No. 2. So as to save the Corporate Debtor from going into liquidation, the Respondent No. 2 provided third opportunity where they provided financials of Invent Assets Securitisations and Reconstructions Private Limited.

04.12.2019 The Prospective Resolution Applicant submitted the EOI after a delay of 1 week to the Respondent No. 2. Further, the Respondent No. 2 sent an email to the members of committee of creditors intimating about EOI received and further requested that in the best interest it is necessary to modify the EOI so as to make Prospective Resolution Applicant Eligible Applicant and also intimated CoC and Prospective Resolution Applicant that Seventh Meeting of CoC will be held on 18.12.2019 for discussing the process ahead.

12.12.2019 The Respondent No. 2 sent an email to Resolution Applicant requesting to submit Resolution Plan and also shared Information Memorandum & RFRP stating all the facts, ongoing litigation of Income Tax Department and Sales Tax Department, informed that Corporate Debtor don’t have proper registered office, no books of accounts has been maintained by them and further informed that audit for the Financial Year 2017-18 and 2018-19 has not been caried out and updated that all the documents were prepared as per details available with him and by management and Appellant.