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TMI Blog2023 (5) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company Appeal (AT) (Insolvency) Nos. 129 & 130 of 2023 filed by the State Bank of India and Ors. vs. The Consortium of Murari Lal Jalan and Mr. Florian Fritsch & Anr. 2. Before we come to the respective submissions made in the IAs filed by the parties, a brief background giving rise to Company Appeal (AT) (Insolvency) Nos. 129 & 130 of 2023 and the filing of the IAs need to be noted: (i) Jet Airways (India) Limited - (Corporate Debtor) was admitted in insolvency on 20.06.2019. A Resolution Plan was submitted by Respondent No.1, which came to be approved by the Committee of Creditors ("CoC") on 21.09.2020. The Adjudicating Authority vide its order dated 22.06.2021 approved the Resolution Plan of Respondent No.1. (ii) Various Appeals were filed in this Tribunal challenging the order dated 21.06.2021, which came to be decided by judgment of this Tribunal dated 21.10.2022, upholding the approval of the Plan with certain directions. (iii) The conditions precedent as contemplated in the Resolution Plan for operationalizing the Corporate Debtor were achieved on 20.05.2022 as per Successful Resolution Applicant/ Respondent No.1. (hereinafter referred to as the "SRA"), which fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority dated 13.01.2023. (viii) In the meantime, the order passed by this Tribunal approving the order of the Adjudicating Authority dated 21.10.2022 was challenged before the Hon'ble Supreme Court and Hon'ble Supreme Court by an order dated 30.01.2023 has dismissed the Civil Appeal No.407 of 2023. (ix) This Tribunal in its order dated 03.03.2023 passed in the present Appeal, took the view that Resolution Plan having been approved by the Adjudicating Authority and by this Tribunal as well as by the Hon'ble Supreme Court, all stake holders have to act in a manner so as to implement the Resolution Plan, this Tribunal declined to pass any interim order for staying the order dated 13.01.2023 passed by the Adjudicating Authority, which was impugned in the Appeal. In paragraph 14 and 15, following was observed by this Tribunal: "14. The Resolution Plan having been approved by the Adjudicating Authority which received approval from this Tribunal as well as up to Hon'ble Supreme Court, all stakeholders have to act in a manner so as to implement the Resolution Plan. The Monitoring Committee is constituted as per the I&B Code and Regulations to take steps to overse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editors on the Monitoring Committee of the Corporate Debtor, to enable certain regulatory and legal compliances under the provisions of the Companies Act, 2013; and (b) Pass such orders as this Hon'ble Appellate Tribunal deems fit and proper in the circumstances of the case and thus render justice." 5. IA Nos.2028-2029 of 2023 has been filed by the SRA. In the Application it is pleaded that as per order dated 13.01.2023, 180 days' time was extended till 15.05.2023 to implement the Resolution Plan by infusing first tranche of money of INR 175 crores. The Applicant pleaded that SRA cannot suo moto infuse funds in the Corporate Debtor and take control of the Corporate Debtor unless corresponding steps are taken by MC Lenders and the order dated 13.01.2023 passed by the Adjudicating Authority, came to be challenged by the MC Lender in this Appeal, where the interim order was declined on 03.03.2023. It is further stated that even though there is no interim order against 13.01.2023 of the Adjudicating Authority, the MC Lenders did not take steps in spite of several requests made by the SRA. On 13.04.2023, the MC Lenders took first step towards the implementation of the Resolution Plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een made: "(a) allow the Application and pass an order restraining/ injuncting the Respondents from encashing or appropriating the Performance Bank Guarantee and Ernest Money deposited by the Applicant/ SRA in favor of Respondent No.1 under the Resolution Plan. (b) pass interim/ ad-interim reliefs in terms of prayers (a) above; (c) pass any other such order(s) as this Hon'ble Appellate Authority may deem fit and proper in the facts and circumstances of this case." 7. We have heard Shri Gopal Jain, learned Senior Counsel assisted by Shri Raunak Dhillon appearing for the Appellant - State Bank of India. Shri Ravi Shankar Prasad, learned Senior Counsel and Shri Krishnendu Datta, learned Senior Counsel for the SRA. 8. Shri Gopal Jain, learned Senior Counsel in support of IA No.1975 of 2023 submits that permission of Tribunal is required for appointment of Board of Directors, so that necessary regulatory actions as part of general corporate compliances under the law can be taken. The prayers made in the IA No.1975 of 2023 have not been opposed by the learned Senior Counsel for the SRA. It is submitted that the Board of Directors need to be appointed. Shri Prasad, however, submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to IA Nos.2159-2160, Shri Jain submits that Performance Bank Guarantee is an independent contract where the lenders have right to invoke the Bank Guarantee, which cannot be made subject matter of the Application. It is submitted that SRA has to infuse INR 175 Crores, which is first tranche of money. 12. We have considered the submissions of learned Counsel for the parties and have perused the record. 13. The IA No.1975 of 2023 filed by the MC Lenders, seeks permission for appointment of Board of Directors of the Corporate Debtor. The Application as noted above is not opposed by the SRA and it is stated that the appointment of Board of Directors to the Corporate Debtor is the step, which is essential for taking various regulatory actions as part of general corporate compliances under law. We allow the IA No.1975 of 2023 in terms of prayer (a). 14. Now we come to the IA Nos.2028-2029 of 2023, where the SRA has prayed for exclusion of time prayed for in the Application from 16.11.2022 till the Company Appeal (AT) (Insolvency) Nos. 129 & 130 of 2023 is decided. As noted above, the SRA has already filed an Application before the Adjudicating Authority, praying for exclusion of ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 communicating the account number to the SRA and on being pointed out by the SRA that account number communicated on 13.04.2023 is not a designated account, in which amount can be infused, Shri Gopal Jain very fairly submitted that another designated account shall be communicated to the SRA immediately on which first tranche of INR 175 crores has to be infused by the Appellant. 16. Shri Gopal Jain has further submitted that there being no stay on the implementation, the SRA cannot claim exclusion of the aforesaid period. 17. After considering the facts and sequence of events in the present case, we are of the view that SRA is entitled for exclusion of period from 16.11.2022 till 03.03.2023, when this Tribunal in the present Appeal passed an order declining the interim relief as prayed by the MC Lenders. IA Nos.2028-2029 is thus allowed, excluding the period from 16.11.2022 till 03.03.2023. As undertaken by the SRA, the IA No.1863 of 2023 pending before the Adjudicating Authority shall be withdrawn. IA No.2028-2029 of 2023 is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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