2022 (11) TMI 699 - AT - Insolvency and Bankruptcy

Liabilities towards Bank Guarantee - whether the Appellant and other member banks of consortium were entitled to payment towards live Bank Guarantees related to large projects under Resolution Plan invoked prior to the Transfer Date by the Successful Resolution Applicant - HELD THAT - It is noteworthy that the two asterisks ( ) that appear below the table of Summary of Utilisation of Funds states that the utilisation of funds will be in the manner as provided under this Resolution Plan. Further in the note that in the footnote with sign it is stated that this amount also includes the amount equivalent to 52.50% of the invoked bank guarantees issued by the secured financial creditors pertaining to large projects, to be paid to such respective Secured Financial Creditors whose bank guarantees are invoked - It becomes clear from perusal of the definitions of Closing Date and Transfer Date that the management and control of the corporate debtor will devolve to the board constituted by the Resolution Applicant on the Transfer Date which will be within 15 days of the Closing Date. The Transfer Date relates to the date when the management/ corporate debtor goes in the hands of the board of the Successful Resolution Applicant. It is not disputed that the said bank guarantees were invoked vide letters dated 18.10.2021 (attached at Page- 169- 173 of the Appeal Paper Book) and the SRA replied to these invocation letters stating that it was not liable to pay any amount post such invocation, as the Bank Guarantees were invoked prior to Transfer Date i.e 04.01.2022. Hon ble Supreme Court in the matter of Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. 2021 (4) TMI 613 - SUPREME COURT and Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta Ors. 2019 (11) TMI 731 - SUPREME COURT wherein it is clearly held that Successful Resolution Applicant cannot be subjected to surprise claims which are not part of Resolution Plan. Any purported liability falling on the Successful Resolution Applicant prior to Transfer Date in respect of invocation of bank guarantees shall not be payable by the SRA - Appeal dismissed.

Summary

Issues Involved:
1. Entitlement of payment towards live bank guarantees invoked prior to the "Transfer Date" under the Resolution Plan.
2. Interpretation of the terms of the Resolution Plan regarding the payment of invoked bank guarantees.
3. Applicability of relevant legal precedents and judgments.

Issue-wise Detailed Analysis:

1. Entitlement of Payment Towards Live Bank Guarantees Invoked Prior to the "Transfer Date" Under the Resolution Plan:
The core issue in this appeal is whether the appellant (Bank of Maharashtra) and other consortium member banks are entitled to payment for live bank guarantees related to large projects that were invoked before the "Transfer Date" by the Successful Resolution Applicant (SRA). The appellant argued that the SRA undertook to pay 52.50% of the invoked bank guarantees as per the Resolution Plan approved by the Committee of Creditors (CoC) and the Adjudicating Authority. The appellant contended that since the bank guarantees were live at the time of submission and approval of the Resolution Plan, the SRA should honor its commitment to pay the invocation amounts.

2. Interpretation of the Terms of the Resolution Plan Regarding the Payment of Invoked Bank Guarantees:
The appellant referred to specific clauses in the Resolution Plan, particularly clause 3.5 relating to the "Source of Funds" and its "Utilisation," and clause 3.7 concerning the "Treatment under the Resolution Plan for the Financial Creditors." The appellant emphasized that the Resolution Plan included provisions for the payment of invoked bank guarantees and that the SRA was obligated to make such payments. The respondent, however, argued that the Resolution Plan clearly stipulated that the payment towards invoked bank guarantees would only be made if the invocation occurred subsequent to the "Transfer Date." The respondent highlighted that the "Closing Date" and "Transfer Date" were defined in the Resolution Plan, and the management/control of the corporate debtor would transfer to the SRA on the "Transfer Date." Since the invocation of the bank guarantees took place before this date, the SRA was not liable for the payment.

3. Applicability of Relevant Legal Precedents and Judgments:
The appellant relied on several judgments to support their contention, including Andhra Bank v. F.M. Hammerle Textile Ltd., Export Import Bank of India v. Resolution Professional JEKPL Private Ltd., and Canara Bank v. IVRCL Limited. Additionally, the appellant cited Supreme Court judgments in Enercon (India) Ltd. v. Enercon GMBH and Union of India v. D.N. Revri and Co. to argue for a purposive interpretation of contractual terms. The appellant also referred to Phoenix ARC Pvt. Ltd. v. Anush Finleash & Construction Pvt. Ltd. and Pragdas Mathuradas v. Jeewanlal (1929), Limited to assert that bank guarantees constitute independent contracts and are not subject to Section 14 of the IBC. The respondent countered by citing Supreme Court judgments in Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. and Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta, arguing that any claims not explicitly covered in the approved Resolution Plan would be extinguished.

Judgment:
The tribunal found that the Resolution Plan explicitly stated that payment for live bank guarantees would only be made if the invocation occurred after the "Transfer Date." Since the bank guarantees were invoked before this date, the SRA was not liable for the payment. The tribunal emphasized the importance of adhering to the specific terms of the Resolution Plan and the definitions of "Closing Date" and "Transfer Date." The tribunal also referenced the Supreme Court's judgments, which supported the view that the SRA could not be subjected to surprise claims not included in the Resolution Plan. Consequently, the appeal was dismissed, and the tribunal concluded that the purported liability falling on the SRA prior to the "Transfer Date" was not payable by the SRA. No order as to costs was made.