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2020 (9) TMI 386 - AT - Insolvency and BankruptcyApproval of Resolution Plan - Prior permission of the CCI was not obtained under Proviso to Section 31(4) of I&B Code - HELD THAT:- This is a material irregularity by the Respondents and contravention of Section 30 of the I&B Code, 2016; it seems that the purpose of the IBC is to ensure that wherever a “Combination” as referred in Section 5 of the Competition Act, 2002 the requirement is the concerned Resolution Applicant shall obtain the approval of CCI prior to the approval of such Resolution plan by the CoC. The purpose is complied with in the present case, the approval from CCI has been obtained in June, 2019 and approval of the Resolution plan has been made by the Adjudicating Authority in April, 2020/May, 2020, this aspect has been taken care of by the Adjudicating Authority. The Adjudicating Authority, while approving the plan has also stated vide its order dated 30.04.2020 para 17(2) that wherever approval/ permissions are required the same is to be obtained within a period of one year from the date of the approval of the Resolution Plan. In Para 17 of the impugned order dated 30.04.2020, the Adjudicating Authority has provided various directions to various authorities to assist the Corporate Debtors, so that the Resolution Plan is operational - All this suggests that the Adjudicating Authority was conscious of CCI approval and hence, ignoring the fact that CCI approval has been obtained post CoC approval of the Resolution Plan is in order. Suppression of Fact regarding implementation of Resolution Plan - HELD THAT:- Suppression of Fact regarding implementation of Resolution Plan resulting from resignation of Mr.Johannes Sittard on 01.04.2018 and being only a person technically competent to run the Corporate Debtor was also examined and it is found that Dr. Sittard resigned only as a partner of Nittah Capital Resources on 01.04.2018 but he is still associated with Nittah Capital Resources in his capacity and designation as Non-Executive Chairman and Director Nittah Capital Resources and as on date he continues to hold the designation of Non- Executive Chairman and Director of Nittah Capital Resources. However, the Adjudicating Authority has already made appropriate arrangement by putting a specific condition that the Resolution Applicant would appoint an observer. In any case, individual can come and go and Company is to run. However, a responsibility is fixed on the Resolution Applicant/Respondent No.3 that Dr. Sittard should continue for next one year or for such extended period till the Corporate Debtor stands on its feet. Extension of Performance Bank Guarantee and its variation in terms of the Request for Resolution Plan (RFRP) - HELD THAT:- It is found that the Bank Guarantee for the requisite amount was kept for one year for full amount of ₹ 250 Crore but after one year due to the financial crisis faced by pandemic Covid-19, the Resolution Applicant requested for reduction of amount of Performance Bank Guarantee and CoC has accepted the lower amount of ₹ 50 Crore in place of PBG of ₹ 250 Crore as required by RFRP after expiry of the PBG on 30.04.2020. the CoC has exercised its right under Clause 6.4 of the RFRP, agreed to allow for modification in the validity period of PBG. The Adjudicating Authority has elaborately covered this issue in para 61 of its order dated 30.04.2020. There are no merits in the appeal - appeal dismissed.
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