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2023 (8) TMI 192 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAIRefund of the EMD Amount - respondent was considered to be ‘disqualified’ under Section 29A of the Code for Submission of the Plan - HELD THAT:- It is an admitted fact that the First Respondent had deposited an amount of Rs. 2,00,00,000/- on 23/01/2020 towards EMD/ Binding Submission Bank Guarantee (BSBG), and was subsequently informed by the Appellant vide email dated 27/02/2020 that he was disqualified under Section 29A of the Code and hence was not eligible to submit a Resolution Plan. While so, the ‘Adjudicating Authority’ vide Order dated 29/05/2020 had ordered for Liquidation of the Corporate Debtor Company. As regarding the forfeiture of BSBG, it is clearly stated in the terms that only when the Resolution Applicant is found to have made ‘false or misleading representation’, it can be forfeited. In the instant case, there is absolutely no material evidence on record to substantiate the contention of the Appellant that the 1st Respondent had deliberately or maliciously sought to derail the CIRP Process or given any misleading representation. It is not the case of the Appellant that the 1st Respondent had challenged his ineligibility under Section 29A of the I & B Code, 2016 by way of an Appeal. It is pertinent to mention that under Regulation 36B of the IBBI (CIRP) Regulations, 2016, there is no requirement to obtain a non-refundable deposit for submission of the Resolution Plan. The Record shows that the Company had gone into Liquidation on 29/05/2020 and the IA/829/2020 filed by the 1st Respondent was allowed, vide the Impugned Order on 04/10/2021 and the EMD amount of Rs. 2,00,00,000/- has still not been refunded. The ‘Adjudicating Authority’ in the Impugned Order has observed that the Resolution Plan given by the 1st Respondent was not even placed before the CoC for its consideration and therefore the question of delay in procedure does not arise and that the Liquidator was not right in holding back the EMD amount. There are no illegality or infirmity in the reasoning given by the ‘Adjudicating Authority’ in the Order impugned - appeal dismissed.
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