TMI Blog2023 (5) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... king restraint/ injunction on the Respondents from encashing or appropriating the Performance Bank Guarantee and Ernest Money deposited by the Applicant/ SRA - HELD THAT:- When the Resolution Plan of the Corporate Debtor has received approval up to Hon ble Supreme Court and the Monitoring Committee is constituted under the Plan to oversee implementation, the Monitoring Committee has to act as a facilitator for implementation of the Resolution Plan instead of finding fault and taking steps, which does not facilitate the implementation, rather delay the implementation. There is no doubt that Performance Bank Guarantee can be invoked by the MC Lenders, but the said invocation can only take place when SRA has failed to implement the Plan. Present is a case where directions have been issued to both MC Lenders and SRA to implement the Plan and the event of failure of the Plan has not yet arrived. When the Adjudicating Authority has directed on 13.01.2023 to take steps towards the implementation of the Plan and which order was not been stayed by this Tribunal on 03.03.2023, the steps ought to have been taken by the MC Lenders in furtherance of the implementation - The Resolution Plan has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No.1. (hereinafter referred to as the SRA ), which factum was contested by the Appellant Monitoring Committee of Lenders (hereinafter referred to as the MC Lenders ). The SRA wrote to MC Lenders to share necessary documents for execution and completion of necessary steps to enable SRA to start capital infusion in the Corporate Debtor and settle dues of the creditors in compliance with the approved Resolution Plan. The MC Lenders disputed the fulfillment of conditions precedent. (iv) The SRA filed IA No.3398 of 2022 (implementation Application) and IA No.3508 of 2022 (Exclusion Application) before the Adjudicating Authority seeking exclusion of the period in Company Petition (IB) 2205/MB/2019 and also for direction to the MC Lenders to give control and management of the Corporate Debtor to SRA and declare 20.05.2022 to be an effective date. Further SRA sought exclusion of time from 20.05.2022 till the decision of the Adjudicating Authority, i.e. from the 180 days period granted to infuse the first tranche of funds required under the Plan. The Application was contested by the MC Lenders contending that effective date has not been achieved, since the SRA has not fulf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee is constituted as per the I B Code and Regulations to take steps to oversee the implementation of the Resolution Plan. The Resolution Applicant has filed the Application seeking certain direction for implementation which has been allowed and we as on date are of the view that no grounds have been made out to grant any interim order staying the order impugned passed by the Adjudicating Authority or to direct the parties to maintain Status Quo. 15. The steps regarding the implementation of the plan has to be taken by the SRA which need to be overseen and cooperated by the Monitoring Committee. Learned Sr. Counsel appearing for the SRA has submitted that SRA shall discharge all its obligations under the Resolution Plan for successful implementation of the resolution plan. In view of the above, we see no reason to pass any Interim Order as on date reserving the right to the parties to pray for any interim direction after pleadings are complete. (x) The order passed by this tribunal on 03.03.2023 has been challenged by the Appellant before the Hon ble Supreme Court by filing Civil Appeal No.16091 of 2023, which is pending consideration before the Hon ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he SRA. On 13.04.2023, the MC Lenders took first step towards the implementation of the Resolution Plan by sharing details of the bank account of the Corporate Debtor for infusion of share application money. The MC Lenders also filed an Application being IA No.1975 of 2023 in this Tribunal on 08.05.2023 in this Appeal seeking directions of the Tribunal to permit appointment of Board of Directors of the Corporate Debtor. It is pleaded that account details, which has been communicated by MC Lenders are also not in accordance with Section 42, sub-section (6) of the Companies Act, 2013 and there has to be a designated account for infusing the fund for share application money. The SRA had also filed an Application before the NCLT being IA No.1863 of 2023 seeking exclusion of period from 16.11.2022 till 13.04.2023, which Application could not be heard and next date fixed is 06.06.2023. The learned Senior Counsel for the SRA submitted that in view of filing IA Nos.2028-2029 the SRA will withdraw the IA No.1863 of 2023 filed before the Adjudicating Authority. In the Application 2028-2029 of 2023, following prayers have been made: (a) allow the Application and exclude the period from 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Senior Counsel for the SRA. It is submitted that the Board of Directors need to be appointed. Shri Prasad, however, submits that while appointing the Board of Directors, the Appellant may also consider including one representative of SRA. 9. The learned Senior Counsel for SRA in support of IA Nos.2028-2029, praying for exclusion contended that even after order dated 13.01.2023 passed by the Adjudicating Authority, appropriate corresponding steps have not been taken by the MC Lenders, so as to proceed further by the SRA and 13.04.2023 is the first step taken by the MC Lenders, intimating the bank account, which bank account is also not a designated bank account as required by law, in which share application money can be deposited. It is submitted that SRA has filed an Application before the Adjudicating Authority for exclusion of period, which could not be heard and the next date before the Adjudicating Authority is 06.06.2023 and as the 15.05.2023 was fast approaching, hence IA Nos.2028-2029 was filed on 12.05.2023 seeking exclusion. The learned Senior Counsel submits that at least the period from 16.11.2022 to 13.04.2023 be excluded for the period of implementation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2023 is decided. As noted above, the SRA has already filed an Application before the Adjudicating Authority, praying for exclusion of time, which is fixed for 06.06.2023 being IA No.1863 of 2023 and the same has not yet been considered. The SRA had filed this Application on 12.05.2023, since the 180 days period as per order passed by the Adjudicating Authority dated 13.01.2023 was coming to an end on 15.05.2023. We having already by our order dated 03.03.2023 passed in this Appeal directed that steps regarding the implementation of the Plan need to be undertaken by the SRA, which need to be overseen and cooperated by the Monitoring Committee, all necessary steps have to be taken by both the parties. From the facts, which have been brought on record, it appears that even after order dated 13.01.2023 passed by the Adjudicating Authority, allowing the implementation of the Plan filed by the SRA, the directions issued by Adjudicating Authority on 13.01.2023 were not implemented by the MC Lenders. Rather, MC Lenders have challenged the order dated 13.01.2023 by means of Company Appeal (AT) (Insolvency) Nos. 129 130 of 2023. In Company Appeal (AT) (Insolvency) Nos. 129 130 of 2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allowed accordingly. 18. Now we come to IA Nos.2159-2160 of 2023. The SRA has given a Performance Bank Guarantee for implementation of the Resolution Plan. The Adjudicating Authority having come to the conclusion that conditions precedent have been achieved by the SRA, issued directions to the MC Lenders to implement the Plan, which order as noted above has been challenged by the MC Lenders in this Appeal. On 03.03.2023 as noted above, this Tribunal passed a categorical direction for taking steps regarding the implementation of the Plan by the SRA, which were required to be overseen and cooperated by the Monitoring Committee. 19. When the Resolution Plan of the Corporate Debtor has received approval up to Hon ble Supreme Court and the Monitoring Committee is constituted under the Plan to oversee implementation, the Monitoring Committee has to act as a facilitator for implementation of the Resolution Plan instead of finding fault and taking steps, which does not facilitate the implementation, rather delay the implementation. There is no doubt that Performance Bank Guarantee can be invoked by the MC Lenders, but the said invocation can only take place when SRA has failed to i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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