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2021 (2) TMI 839 - Tri - Insolvency and BankruptcyRecalling of approved Resolution Plan - Whether a Resolution Plan approved by the Adjudicating Authority can be recalled and an order of Liquidation be passed? - HELD THAT:- In the matter “Committee of Creditors of Educomp Solutions Ltd. vs. Ebix Singapore Pte. Ltd. & Anr.” [2020 (8) TMI 338 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], it was held that this Tribunal cannot exercise its powers under Section 60(5) of I&B Code and recall its own orders, as there is a provision of Appeal in such matters. The plea raised by the applicant in IA/IBC/16/KOB/2021 to get back the EMD amount of ₹ 25,00,000/- also cannot be entertained at this stage because after approval of the Resolution Plan by this Tribunal, a Resolution Applicant cannot come forward and state that due to their ignorance about the provisions regarding ‘Asset Reconstruction Companies’ they are withdrawing the Resolution Plan, as the Resolution Applicant should have examined all the provisions/ rules before submitting a Resolution Plan and depositing the E.M.D. As per Regulation 36B (4A) of IBBI (Insolvency Resolution Process for Corporate persons) Regulations, 2016, the Request For Resolution Plans (RFRP) shall require the Resolution Applicant (if the resolution plan is approved under Sub-Section (4) of Section 30), to provide a performance security within the time specified therein and such performance security shall stand forfeited if the Resolution Applicant of such plan, after its approval by the Adjudicating Authority, fails to implement or contributes to the failure of implementation of that plan in accordance with the terms of the plan and its implementation schedule. Thus, it is clear that when a Resolution Plan is admitted, in case the party withdraws its Resolution Plan by not remitting the requisite amount, surely the EMD amount paid will be forfeited as per the aforesaid provisions in the IBBI Regulations. Hence, this Tribunal cannot direct the Resolution Professional to refund the EMD of the Resolution Applicant - Since the Resolution Applicant has withdrawn the Resolution Plan for the reasons stated in their request for withdrawal of Resolution Plan and that the EMD amount is still available with the Resolution Professional, it is a matter for the parties to approach the appropriate forum seeking directions as per the IBBI Regulations. This Tribunal cannot either order liquidation or to direct the refund of the EMD, as this Tribunal has become functus officio after approval of a Resolution Plan with the consent of both the parties - Application dismissed.
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