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2023 (9) TMI 85 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAIPerformance Bank Guarantees - Capital Investment’, till date made or not - Claim either for Invocation of Bank Guarantees or claim for Transmission Charges and or damages - scope of moratorium u/s 14 of IBC - HELD THAT:- Undoubtedly, Performance of Bank Guarantee, is excluded from the definition Section of 3 (31) of the I & B Code, 2016. Viewed in that perspective, this Tribunal, unhesitatingly holds in a cocksure manner that the Performance Bank Guarantee, does not fall under Moratorium, in terms of Section 14 of the I & B Code, 2016 - As far as the present case is concerned, in the various Joint Co-ordination Meetings, it was categorically observed that there was an Adverse Progress, as regards the Construction of Generating Station, by the Corporate Debtor, who was aware of the same. The Transmission Agreement, dated 31.03.2016, entered into between the 1st Respondent / Power Grid Corporation of India Limited and M/s. Lanco Vidarbha Thermal Power Limited (vide Clause 1), unerringly points out that the Bank Guarantee, shall be encashed, by Powergrid, in case of Adverse Progress of Work, under the scope of LVTPL assessed, during the Joint Co-ordination Meeting, etc. As such, it is clear that in the event of Adverse Progress, encashment of Bank Guarantee, is a compulsory one, as per the Transmission Agreement, entered into between the Parties. Thus, bearing in mind of the well settled legal principle that the Bank Guarantee, is neither an Asset nor a Liability of a Company, considering the surrounding facts and circumstances of the case in an integral manner, this Tribunal, especially, keeping in mind, of a primordial fact, that the Invocation of Eleven Performance Bank Guarantees, furnished by the Corporate Debtor to the 1st Respondent / Power Grid Corporation of India Limited, pursuant to the Transmission Agreement dated 31.03.2016, the Connectivity Regulations of the Central Commission and the detailed Procedure, notified thereunder, coupled with the Letters dated 17.12.2020, issued by the 1st Respondent, to the Respondent Nos. 2 to 7, are just valid and legally tenable, which cannot be found fault with. Appeal dismissed.
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