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TMI Blog2022 (8) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Bijay Singh ; This Appeal has been preferred by the Appellant being aggrieved and dissatisfied by the order dated 04.05.2020 in MA 3711/2019 in C.P. (IB) 3457/MB/2018 passed by the Ld. Adjudicating Authority [National Company Law Tribunal, Mumbai Bench-I (Special Bench)] whereby and where under the Adjudicating Authority passed the following orders: "34. Given the above observations, we approve the resolution plan with modifications, as mentioned above, which shall be binding on the Corporate debtor and its employees, members, creditors, guarantors, Resolution Applicant and other stakeholders involved in the resolution plan. 35. The resolution professional shall forward all records relating to the conduct of the corporate insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out within the stipulated time. Time was essence of the Contract. On account of delay on part of the Respondent No. 1, the Appellant was entitled to claim liquidated damages apart from other legal remedies available to it. The parties to the contract agreed that the contract would be governed and interpreted in accordance with the laws of India. iii) Further, on the same day, i.e. 30.09.2015, an agreement was signed between the Appellant and Respondent No. 1 - M/s Trimax IT Infrastructure & Services Ltd. The pre-estimated damages were agreed to be levied in terms of Clause 9.5 of the contract besides agreeing to other terms and conditions as laid down in the contract. The functional requirements of the contract were elaborated in Clause 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.12.2018, a approval was granted by the Appellant Corporation for acceptance of said Proposal from the Respondent No. 1. viii) That preliminary Notice dated 23.01.2019 was issued against the Respondent No. 1 by the Appellant Corporation for low performance and pending works. On 21.02.2019, the Ld. Adjudicating Authority admitted a petition under Section 7 of the Code, which was filed by a Financial Creditor namely Corporation Bank against the Corporate debtor M/s Trimex IT Infrastructure Service Ltd. (Respondent No. 1 herein). The amount claimed to be default was Rs. 84,94,87,361.06/- The Adjudicating Authority took note of the admission of liability which was made by the Corporate Debtor. Accordingly, the Adjudicating Authority passed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Respondent No. 2 was requested to take necessary action so that the Appellant could be paid the said outstanding amount. xii) Further, on 08.01.2020, the Appellant informed the Resolution Professional that 135 bills of some deports are yet to be received and ensure the payment of amount to the Appellant. On 09.01.2020, the Respondent No. 2, for the first time, gave a preliminary response to the letter of the Appellant dated 08.01.2020 and alleged that the Respondent No. 1 had submitted invoices to the Appellant on monthly basis and as against pending 135 invoices, 85 invoices were submitted. The Resolution Professional conveyed tht all the invoices were being re-submitted. The Respondent No. 2, in complete ignorance of all the book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 with copies to other office-bearers of the Respondent No. 1 by the Appellant on 27.01.2020. The Appellant, vide its representation dated 28.01.2020, replied to the misconceived letter dated 24.01.2020 and reminded both the respondents that the Respondent No. 1 could not be allowed to withdraw from the agreement/contract unilaterally. xv) The Appellant, on 26.02.2020, yet again issued communication pursuant to its previous letter dated 28.01.2020. The Appellant cleared its stand on reasons for levying damages and also apprised the Resolution Professional that a payment of Rs. 3.26 Crores was already made to the Respondent No. 1. xvi) The Ld. Adjudicating Authority, vide its common Judgment and order dated 04.05.2020, allowed a Miscellane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed. 7. The Ld. Counsel for the Respondents during the course of argument submits that the Resolution Plan was approved by the Adjudicating Authority, therefore, there is no merit in the Appeal, the Appeal is fit to be dismissed. 8. After hearing the Ld. Counsel for the parties and hearing the arguments and also considering the Judgment passed by the Hon'ble Supreme Court in the case of "Ghanashyam Mishra and Sons Private Limited Vs. Edelweiss Asset Reconstruction Company Limited & Ors." Reported in MANU/SC/0273/2021, wherein, the Hon'ble Supreme Court of India has held as under:- "95. In the result, we answer the questions framed by us as under: (i) That once a resolution plan is duly approved by the Adjudicating Authority Under Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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