" NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Ins) No. 196 of 2025 IN THE MATTER OF: Jubin Kishore Thakkar & Ors. …Appellants Versus Ashutosh Agarwala, RP for Colour Roof (India) Ltd. …Respondents Present: For Appellant : Mr. Abhijeet Sinha Sr. Advocate with Mr. Sourasubha Ghosh, Ms. Sanaya Patel and Mr. Rahul Narang, Advocates. For Respondents : Mr. Nausher Kohli, Mr. Pulkitesh Dutt Tiwari, Ms. Shreeya Pednekar, Advocates for RP. O R D E R (Hybrid Mode) 21.02.2025: Heard counsel for the Appellant as well as counsel for the Resolution Professional (RP). 2. This appeal has been filed against the order dated 12.12.2024 passed by the Adjudicating Authority by which the I.A. No. 5798 of 2024 filed by the appellant was dismissed. The appellant is a promoter of the corporate debtor who has earlier filed an application before the Adjudicating Authority I.A. No. 4104 of 2024 seeking a direction and prayed for various prayers, the said application was disposed of by Adjudicating Authority on 25.09.2024 giving liberty to applicant to approach the RP in compliance of the mail dated 15.04.2024. In pursuance of the issuance of Form-G PRAs had submitted their expression of interest in the list of PRAs the name of the applicant was not included although he expressed his interest RP issued an email inviting objections against the inclusion and exclusion and in the list of PRAs. 2 of 7 Company Appeal (AT) (Ins) No. 196 of 2025 Adjudicating Authority disposed of the application giving such liberty and thereafter applicant approached the RP. Email was sent by the appellant that the appellant is a MSME promoter and hence he is entitled for relaxation in the eligibility criteria the RP responded the email and informed that CoC meeting is to consider the eligibility criteria which email dated 14.10.2024 has referred to by the appellant. The 10th CoC meeting took place on 09.12.2024 on which an agenda item no.10 request of the appellant to include in the final list of the eligible prospective resolution applicant has been not agreed to. When the appeal earlier came for consideration we directed the RP to file the copy of the minutes of the CoC on record along with the Reply. 3. Ld. Counsel for the appellant submits that the criteria which was earlier finalised by the CoC was for net worth of 25 crores whereas the net worth of the appellant was only Rs.3 crores hence the relaxation was prayed for. It is submitted that in the minutes of 10th CoC meeting which has been brought on the record by the RP there is no consideration with regard to relaxation and the CoC relying on the legal opinion that only with regard to delayed claim by the appellant for inclusion has decided to reject. 4. Ld. Counsel for the RP submitted that when the criteria was finalised in the 2nd CoC meeting the appellant was also present and it is submitted that the Adjudicating Authority never directed by its earlier order to include the name of the appellant on 25.09.2024 and hence order passed on 12.12.2024 that there was no direction to admit the applicant into eligible PRA is correct and no interferences is called for. 3 of 7 Company Appeal (AT) (Ins) No. 196 of 2025 5. We have considered submission of the parties and perused the records. The order which was passed in the earlier application bearing I.A. No. 4104(MB)2024 appellant has prayed for following reliefs:- “a. Direct the Respondent to dispense with or relax the eligibility criteria in \"respect of the Applicants who have submitted their EOI dated 12 March _ 2024 in respect of the Corporate Debtor; b. In addition to (a), direct the Respondent to include the name of Applicant No. 1 or the Consortium in the list of eligible PRAs; c. direct the Committee of Creditors to permit Applicant No. 1 or the Consortium to submit a resolution plan in respect of the Corporate Debtor. The application was disposed of, in paragraph 9 and 10 following was directed by Adjudicating Authority:- “9. The CIRP proceedings is a time bound proceeding. Hence, at this stage this bench is not inclined to pass any order directing the Respondent to include the name of Applicant No. 1 or the Consortium in the list of eligible PRAs. 10. The Applicant is a MSME. Hence, this bench gives liberty to the Applicant to approach the RP for compliance of the mail dated 15.04.2024. The RP is directed to take a decision after the compliance of the necessary documents by the applicant as per the said mail and also directed to take an appropriate decision as per law.” From the facts brought on the record it clear that after the first order the appellant has approached the RP informing that the appellant is promoter and appellant has also prayed for relaxing the minimum net worth with regard to MSME. Appellant has also referred to relied upon the email sent by the RP dated 14.10.2024 which is as follows:- From: ashutosh.agarwala@gmail.com 4 of 7 Company Appeal (AT) (Ins) No. 196 of 2025 Sent: Monday, 14 October, 2024 18:31 To: ‘JUBIN THAKKAR’ ‘Colour Roof India Limited’ Subject: RE: Colour Roof (India) ltd On behalf of Consortium Dear Sir, In accordance with the NCLT order, we would be shortly holding the COC Meeting to consider the relaxation of the eligibility criteria and granting permission for submission of Resolution Plan by the consortium proposed by you. With Regards, 6. The minutes of the 10th CoC meeting which has been brought on the record the agenda item no.10 contains following discussion:- “Agenda 10: To consider and discuss the request for inclusion in the final list of eligible prospective resolution applicants by the consortium led by Mr. Jubin Thakkar The Resolution Professional informed the members of COC that the consortium led by Mr. Jubin Thakkar had submitted an expression of interest on 12th March 2024 for submission of Resolution Plan. However, the consortium did not meet the eligibility criteria relating to financial capability as the weighted average net worth of the consortium was about Rs. 3.00 crores against the eligibility threshold of Rs. 25.00 crores as per the documents submitted on 10th April 2024. Consequently, the consortium was not included in the provisional list of prospective resolution applicants. Further, the RP had sent an email dated 10th April 2024 along with provisional list of Prospective Resolution Applicants (“PRA”) to Mr. Jubin Thakkar and had requested that in case there are any objection to the inclusion or exclusion of a prospective resolution applicant in the provisional list then such objections may be made with supporting documents by 15th April 2024 to the Resolution Professional. Neither any objections were raised nor any request for a relaxation of eligibility criteria was made by the by the consortium led by Mr. Jubin Thakkar. The RP further informed to the members of CoC that the consortium, without availing the opportunity given by him for compliance of the submission of necessary documents, filed the application with NCLT on 8th August 2024 after a time gap of 4 months and sought 5 of 7 Company Appeal (AT) (Ins) No. 196 of 2025 the directions for relaxation of the eligibility criteria and inclusion of its name in the list of eligible PRAs. The RP highlighted that NCLT is its order dated 25th September 2024 clearly noted the application has been filed belatedly and the relevant extract of the order was presented at the meeting and is also reproduced below: “The CIRP proceedings are at an advanced stage. The negotiation is going with the PRAs. The applicant has approached this Tribunal at the belated stage without responding to the RP’s mail dated 10.04.2024. The applicant cited judgements/orders relating to relaxation/exemption. However, the facts of the present case are different. In the instant case, the applicant was given sufficient opportunity to represent before the RP/CoC but failed to do so and has belatedly after a gap of 4 months approached this tribunal against the decision of CoC.” Additionally, the NCLT order dated 25th September 2024 cited the NCLAT judgement which has categorically stated that resolution plan received from any person who does not appear in the final list of prospective resolution applicants cannot be considered. The relevant extract of the said order was presented at the meeting and is also reproduced below: “The Hon’ble NCLAT in the case of Ashdan Properties Private Limited versus Mamta Bibani (RP of Rolta India Limited} and Others has categorically stated that “39. Approval of resolution plan (1B): The committee shall not consider any resolution plan-(a) received after the time as specified by the committee under regulation 36B: or (b) received from a person who does not appear in the final list of prospective resolution applicants; or (c) does not comply with the provisions of sub-section (2) of section 30 and sub-regulation (1).” The RP emphasized that after considering all the facts, the NCLT was not inclined to issue any directions for inclusion of the name of the consortium led by Mr. Jubin Thakkar in the list of eligible PRAs and emphasized the time bound nature of the CIRP proceedings. Since the consortium comprises of the promoters of MSME, the NCLT granted the promoter/consortium the liberty to approach the RP for compliance with the above stated email dated 10th April 2024 which had to be responded by 15th April 2024. Further, the NCLT directed the RP to take an appropriate decision in accordance with the law after compliance of the necessary documents by the resolution applicant as per the said email. 6 of 7 Company Appeal (AT) (Ins) No. 196 of 2025 Taking into consideration the directions of NCLT in its order dated 25th September 2024, during the meeting of Ninth CoC dated 22nd October 2024 the CoC members requested RP to obtain a legal opinion which should consider all the relevant facts of the matter, various applicable laws and similar case precedents before coming to any decision. Accordingly, the RP has obtained the legal opinion dated 17th November 2024 from its legal counsel, Equilex which has been circulated to the members of the CoC for their perusal. It is evident that only the PRAs in the final list are entitled to submit the Resolution Plans and the RP does not have any discretion to grant that privilege to any other person under the applicable laws. Further, any person other than those in the final list of PRAs may avail the opportunity to submit its Resolution Plan in case of fresh issue of Form G for any reasons whatsoever in accordance with the law. Accordingly, the members of the CoC took note of the legal opinion, which concluded that the consortium led by Mr. Jubin Thakkar should not be included in the final list of eligible prospective resolution applicants and therefore not be considered to submit a Resolution Plan. The members of CoC agreed to proceed in accordance with the legal opinion, keeping in mind the best interest of the Corporate Debtor and with the objective of obviating any adverse impact on the ongoing CIRP. During the meeting, Mr. Jubin Thakkar expressed concern that the RP had shared the legal opinion with certain other individuals. In response, the RP disagreed with claim of Mr. Jubin Thakkar and promptly requested to provide evidence supporting such allegations within 24 hours. The RP also requested Mr. Jubin Thakkar to refrain from making false accusations without any evidence.” The RP was well aware that the appellant is praying for relaxation of net worth for the MSME since the MSME does not fulfil the net worth which was already finalised by the CoC. The email which we have extracted above clearly indicate that the RP vide email dated 14.10.2024 itself indicated that “we would be shortly holding the CoC meeting to consider the relaxation of the eligibility criteria and granting permission for submission of Resolution Plan”. The minutes 7 of 7 Company Appeal (AT) (Ins) No. 196 of 2025 of the 10th CoC meeting does not indicate that the CoC has considered the claim of the appellant for relaxation in the eligibility criteria. The present is the case where appellant has submitted expression of interest after issuance of Form-G and the question of relaxation of net worth criteria has not been adverted to and gone into by the CoC which is apparent from the 10th CoC meeting. The Ld. Counsel for the RP submits that two plans have been submitted but voting has not yet commenced. In facts of present case we are of view that it is in the interest of justice that RP may convene the meeting of the CoC for consideration of the claim of the appellant for relaxation as intimated and CoC may after taking a decision proceed further with the CIRP Process. The said meeting may be held by the RP at an early date. 7. We make it clear that we are not expressing any opinion on merits of the claim of the appellant, it is for the CoC to take a decision and proceed thereafter in accordance with law. 8. With the above observations, the appeal is disposed of. [Justice Ashok Bhushan] Chairperson [Barun Mitra] Member (Technical) [Arun Baroka] Member (Technical) harleen/NN "