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2018 (12) TMI 1631 - Tri - Insolvency and BankruptcyApproval of the Resolution Plan - performance of bank guarantee - HELD THAT:- The prayer made by the applicant deserves to be accepted. It has come on record that performance bank guarantee is a sine qua non as has been rightly contended by Mr. Vashisth, learned Senior counsel for the applicant-resolution professional. The 'Process Note' dated 18.05.2018 as modified on 21.06.2018, in categorical terms deals with performance bank guarantee. Within ten business days of the date of issuance of LOI, the Liberty House being successful Resolution Plan applicant was to provide performance bank guarantee of ₹ 60, 00, 00,000/- in favour of State Bank of India which was the Bank on behalf of the COC. Even the format for furnishing the performance bank guarantee has been provided in the 'Process Note' itself. Clause 1.9.3 makes it patently clear that non-submission of performance guarantee by the successful applicant as per the requirement of Clause 1.9. 1 would lead to rendering the Resolution Plan by such successful applicant as non-responsive as the resolution professional would be entitled to reject the Resolution Plan and cancel the LOI. It is pertinent to mention that after the approval of the Resolution Plan on 30.08.2018 by the COC, the LOI was issued on 30.08.2018 itself when by e-voting COC has approved the Resolution Plan. It is also pertinent to notice that the terms and conditions for submission of binding resolution proposal for company which makes it clear by Clause 1.11.2 that the Liberty House was under obligation to fulfil the terms of the 'Process Note'. In respect of M/S. Amtek Auto Ltd. and M/ s. Adhunik Metaliks Limited again Liberty House has presented its Resolution Plans. It is represented that the Resolution Plans in both the cases have been approved and in the aforesaid two cases also the Liberty House is dragging its feet. We are unable to accept the contention advanced on behalf of the Liberty House that litigation is pending, therefore, no notice of such a fact could have been taken by the COC in its meeting dated 19.11.2018 As prayed the period from 04.09.2018 till date is excluded from the CIR Process - HELD THAT:- The act of the court shall harm no man - Actus Curiae neminem gravabit and that the aforesaid maxim is firmly rooted in our jurisprudence. Therefore, the period from 04.09.2018 till today deserves to be excluded from the CIR Process period of 270 days. The period of 270 days in any case is yet to come to an end. Therefore, the resolution professional may place the matter before the COC for further decision in accordance with law.
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