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2020 (1) TMI 1389 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCHSeeking an order for annulment of the Resolution Plan approved - forfeiture of the Performance Security - liquidation of the Corporate Debtor under section 33(1) of the Insolvency and Bankruptcy Code, 2016 - seeking discharge of the erstwhile Resolution Professional for the purposes of Liquidation - seeking appointment of Mr. Ramchandran Subramanian, as the Liquidator for the Corporate Debtor - seeking direction that the Bank Guarantees submitted by the Corporate Debtor should not be encashed - HELD THAT:- Admittedly the resolution applicant has failed to adhere to any of their timelines for equity infusion even after a period of about 8 months since approval of the resolution plan. There is force in the contention that the respondents have repeatedly failed to honour their own commitments and there was delay in infusion of equity, upfront payment and taking control of the management of the Corporate Debtor, which has threatened the going concern status of the corporate debtor severely - Adherence to statutory requirement has to be in toto. When the language of the Code is clear and explicit the Adjudicating Authority must give effect to it whatever may be the consequences - In view of non-implementation of the approved resolution plan by Resolution Applicant; Liquidation has to follow in terms of the provisions of section 33(3) of the Code. Seeking forfeiture of performance guarantee - Regulation 36B (4A) of CIRP Regulations - HELD THAT:- Regulation 36B (4A) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 clearly provides that performance security shall stand forfeited if the resolution applicant fails to implement the approved resolution plan in accordance with the terms of the plan and its implementation schedule. Therefore, as the respondent resolution applicant has failed to implement the approved resolution plan, the performance guarantee of ₹ 5 Crore furnished by the respondent resolution applicant stands forfeited in terms of Regulation 36B (4A) of CIRP Regulations. Seeking restraint on the encashment of the bank guarantees executed by the corporate debtor - HELD THAT:- The concerned banks and the recipients of the performance guarantees have not been made party. This prayer, therefore, cannot be considered at the back of the recipients of the bank guarantees without giving opportunity of hearing to them. The liquidator, however, is given liberty to file proper application on the self-same issue, if so advised. The company application is partly allowed by ordering liquidation of the corporate debtor, namely Tecpro Systems Limited in the manner laid down in the Chapter III of Part II of the Insolvency and Bankruptcy Code, 2016 along with the directions issued.
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