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2021 (7) TMI 559 - Tri - Insolvency and BankruptcyAllegation of Wilful and deliberate violation of Resolution Plan by the successful Resolution Applicant(Rl) - Seeking encashment of Performance Guarantee - backing out after submission of Resolution Plan - criminal punishment u/s. 74(3) of I&B Code - application seeking award of criminal punishment be filed by the erstwhile RP before this Adjudicating Authority. Can the RA be accused of backing out after submission of Resolution Plan, so as to warrant criminal punishment u/s. 74(3) of the Code? - HELD THAT:- In the scheme of the IBC, if a successful RA either refuses or evades the implementation of the approved Resolution Plan, it may tantamount to an offence under Section 74(3) of the Code - The rationale behind criminal punishment for breach or violation of a resolution plan is for maintaining the sanctity of the CIRP process and for deterring pseudo-bidders from delaying or sabotaging the insolvency resolution process - The RA had taken out a sum of over ₹ 40cr from their account for making DD/Bankers Cheque of equal amount for making down payment as per the Resolution Plan way back on 02.02.2021 itself, which has been allowed to be revalidated on 07.05.2021 by this Bench. The RA's conduct, thus appears bona fide and they cannot be held liable for breach of the Resolution Plan so as to warrant punishment u/s. 74(3) of the Code - question framed above in the negative. Can an application seeking award of criminal punishment u/s. 74(3) of the Code be filed by the erstwhile RP before this Adjudicating Authority? - HELD THAT:- The IBC being a complete Code in itself has also incorporated a specific section for trial of offences under the Code by a Special Court - A reference to the provisions of section 236 makes it abundantly clear (I) that all offences under IBC shall be tried by the Special Court established under Chapter XXVIII of the Companies Act, 2013 and (II) that a complaint in this behalf can only be made either by the Board or the Central Government or any person authorised by the Central Government. The applicant in the instant application on the one hand has failed in due discharge of his duties as an erstwhile RP and a Member of the MC, by absenting himself from the meeting of the MC on 29.01.2021 and on the other, he also failed in maintaining due diligence while filing the instant application before us without referring to the provisions of S. 236 of the Code according to which neither he could make a complaint seeking criminal punishment against the RA u/s. 74(3) read with Section. 236(2) of the Code without being authorised by the Central Government nor any offences under the Code could be tried by this Adjudicating Authority in view of provisions of Section 236(1) of the Code - the second question framed also answered in negative. Application not maintainable and is dismissed.
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