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2022 (11) TMI 699 - AT - Insolvency and BankruptcyLiabilities towards Bank Guarantee - whether the Appellant and other member banks of consortium were entitled to payment towards live Bank Guarantees related to large projects under Resolution Plan invoked prior to the Transfer Date by the Successful Resolution Applicant - HELD THAT:- It is noteworthy that the two asterisks (**) that appear below the table of “Summary of Utilisation of Funds” states that the utilisation of funds will be in the manner as provided under this Resolution Plan. Further in the note that in the footnote with $ sign it is stated that this amount also includes the amount equivalent to 52.50% of the invoked bank guarantees issued by the secured financial creditors pertaining to large projects, to be paid to such respective Secured Financial Creditors whose bank guarantees are invoked - It becomes clear from perusal of the definitions of “Closing Date” and “Transfer Date” that the management and control of the corporate debtor will devolve to the board constituted by the Resolution Applicant on the “Transfer Date” which will be within 15 days of the Closing Date. The Transfer Date relates to the date when the management/ corporate debtor goes in the hands of the board of the Successful Resolution Applicant. It is not disputed that the said bank guarantees were invoked vide letters dated 18.10.2021 (attached at Page- 169- 173 of the Appeal Paper Book) and the SRA replied to these invocation letters stating that it was not liable to pay any amount post such invocation, as the Bank Guarantees were invoked prior to Transfer Date i.e 04.01.2022. Hon’ble Supreme Court in the matter of Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. [2021 (4) TMI 613 - SUPREME COURT] and Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta & Ors. [2019 (11) TMI 731 - SUPREME COURT] wherein it is clearly held that Successful Resolution Applicant cannot be subjected to surprise claims which are not part of Resolution Plan. Any purported liability falling on the Successful Resolution Applicant prior to Transfer Date in respect of invocation of bank guarantees shall not be payable by the SRA - Appeal dismissed.
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