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2023 (10) TMI 72 - SC - Insolvency and BankruptcyCIRP - Status of the entity (Corporate debtor) as MSME or not - certificate being procured after the process started - NCLAT held the status of entity as MSME - Contempt proceedings against the Resolution professional for not folloiwng the decision of NCLAT - HELD THAT:- Reliance placed in the case of SARAVANA GLOBAL HOLDINGS LTD. AND ANR. VERSUS BAFNA PHARMACEUTICALS LTD. AND ORS. [2019 (9) TMI 841 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that Admittedly, the ‘Corporate Debtor’ is a ‘MSME’ and the promoters are not ineligible in terms of Section 29A of the ‘I&B Code’. Therefore, it is not necessary for the ‘Committee of Creditors’ to find out whether the ‘Resolution Applicant’ is ineligible in terms of Section 29A or not. In the impugned judgment, it can hardly be disputed that there is no discussion on the special circumstances other than the reference to judgment in Bafna’s case. The impugned judgment is predicated on a broad reasoning as if ipso facto there is no need to call other proposals if it is an MSME. In view of the larger context it would have, we clearly observe and hold that this is not the correct position of law - This is more so as in the factual scenario of Bafna’s case, the observations were made in the context of (a) before the constitution of CoCs or (b) in terms of Section 12A of the Code on the basis of an offer given by the promoter in such a case. The appellant cannot be faulted for calling for other proposals in which the proposal given by respondent No.1 was also to be examined, put them to voting before the CoCs and declare the results - impugned order set aside - appeal allowed.
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