TMI Blog2020 (8) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... ss and activities of the Corporate Debtor will have to be carried out for smooth functioning of the company and the company shall remain as a going concern. Apart from that the Resolution Professional shall ensure for smooth running of the company as a going concern and the Resolution Professional shall perform the duties as per Section 25 of the I B Code. Sub- Section (2)(a) of Section 25, the Resolution Professional take immediate custody and control of all the assets of the Corporate Debtor, including the business records of the Corporate Debtor - Further, the said provision sets out the duty of Resolution Professional to preserve and protect the assets of the Corporate Debtor and lays down the functions he may perform the same. In view of the duties cast upon the Resolution Professional, the Resolution Professional to keep the Corporate Debtor as a going concern and filed an application being C.A. (M.B.)- 2954 of 2019 before the Adjudicating Authority seeking stay of termination of notice and sought direction to the Appellant to continue the Facilities Agreement dated 01.12.2016 - The Adjudicating Authority after hearing the parties stayed the termination of notice an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is aggrieved by the Order of the Adjudicating Authority dated 18th December, 2019 on the ground that the Adjudicating Authority failed to appreciate the arbitration agreement contained in Clause 12(d) of the Facilities Agreement, and failed to appreciate that a valid notice of termination was issued by the Appellant. The Adjudicating Authority failed to appreciate that the notice of termination was not in contravention of Section 14 of the Insolvency Bankruptcy Code (in short I B Code). In view of the submissions as made above the Learned Counsel for the Appellant sought direction to set aside the Impugned Order dated 18th December, 2019 passed in M.A. No. 2954 of 2019. 6. The Learned Counsel for the Respondent filed a detailed reply and submitted that the Corporate Debtor i.e. the S.K. Wheels Private Limited had entered into a build phase agreement dated 24th August, 2015. Consequently, the parties entered into a Facilities Agreement dated 1st December, 2016. The Learned Counsel submitted that in terms of the agreement the Corporate Debtor was under the obligation to inter-alia fit the premises with the materials as per specification mentioned in the agreement and provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel appeared for the respective parities perused the pleadings documents filed in their support. This Tribunal by Order dated 07.02.2020 when this appeal was filed and after hearing the parties passed the following order: - Resolution Professional will provide the same facilities to the Appellant-Tata Consultancy Services Limited in terms of the Agreement to keep the Corporate Debtor as a going concern. In mean time it will be open to the Resolution Professional to proceed with the Corporate Insolvency Resolution Process in accordance with law and any action shall be subject to the decision of this Appeal. 8. It is not in dispute with the appellant and the Corporate Debtor entered the build phase agreement dated 24.08.2015 (Annexure- A-2, Page- 30) and the Parties have signed the said agreement. In continuation of the said agreement, the Appellant and the Corporate Debtor had entered Facilities Agreement dated 1st December, 2016 signed by both the parties. Clause 11 stipulates the termination of the Facilities Agreement which is reproduce herein. 11(b): Termination for material breach:- Either party may terminate this agreement immediately by a wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. It is evident from the Order dated 29th March, 2019 of the Adjudicating Authority the application under Section 7 IBC was admitted and prohibited the transactions as contemplated under above Provision. Following is the operative portion of the Impugned Order which reads under: 7. This Adjudicating Authority, on perusal of the documents filed by the Creditor, is of the view that the Corporate Debtor defaulted in repaying the loans availed and also placed the name of the Insolvency Resolution Professional to act as Interim Resolution Professional to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution Professional (in short IRP) to carry out the functions as per law. In view of Section 14 once a moratorium was imposed by the Adjudicating Authority and on appointment of Interim Resolution Professional the Interim Resolution Professional will be at the helm of affairs of the company in view of the suspension of the Board of Directors of the Corporate Debtor . As on the date of the imposition of moratorium the business and activities of the Corporate Debtor will have to be carried out for smooth functioning of the company and the company shall remain as a going concern. Apart from that the Resolution Professional shall ensure for smooth running of the company as a going concern and the Resolution Professional shall perform the duties as per Section 25 of the I B Code. Sub- Section (2)(a) of Section 25, the Resolution Professional take immediate custody and control of all the assets of the Corporate Debtor, including the business records of the Corporate Debtor. Further sub-section 2 (b) of Section 25 of the I B Code states that (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate deb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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