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TMI Blog2020 (2) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... lan by Committee of Creditors on 10.01.2019, all the cash balances and accrual should be adjusted against the upfront payment of ₹ 420 crores. This issue has been unambiguously clarified by the Resolution Professional on more than one occasion that any amendments to the provision to the Resolution Plan as approved by the Committee of Creditors in its meeting dated 10.01.2019 and thereafter submitted to Hon'ble NCLT in the Application u/s. 30 of the IBC is not possible. It is clear from the Application preferred by the Resolution Applicant on behalf of the Monitoring Agency that the Resolution Applicant, Royale Partners Investment Fund Limited, is delaying the implementation of the Plan by raising frivolous issue which are incorrect and untenable. It has also been brought in the Application that as per the Resolution Plan within 30 business days from the date of approval of the Plan, i.e. 25.11.2019 the Resolution Applicant has to bring the upfront payment which is ₹ 420 crores in this instant case - this Bench notes that the upfront payment has not been made by the Resolution Applicant and also the NCDs of ₹ 480 crores has not been issued to the Financial C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modification to the terms of the Resolution Plan. 3. Contention of the Resolution Applicant :- 3.1. The Resolution Applicant has sought to modify the Resolution Plan after its approval by the CoC and thereafter by NCLT and it seeks to appropriate the cash balance in the Corporate Debtor instead of payment of the said amounts to the Financial Creditors as agreed in the Resolution Plan. As per the Resolution Plan the cash balances of the Corporate Debtor will accrue and be paid to the Financial Creditors till the date of implementation of the plan i.e. till the date of payment of upfront consideration. 3.2. The Resolution Applicant had expressly committed to undertake the payment of the total consideration i.e. the Upfront payment of ₹ 420 crore and the issuance of the NCDs of INR 480 crore within 30 business days from the NCLT approval date (which expired on January 10, 2020) on the basis of which the CoC had accorded its approval to the Resolution Plan. However, the Upfront Consideration has not been paid by the Resolution Applicant and the NCDs have not been issued to the Financial Creditors. 3.3. The Resolution Applicant had earlier on 03.06.2019 addressed a let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a retrospective amendment to the approved Resolution Plan so as to ensure that the Upfront Consideration required to be paid to Financial Creditors is reduced by the aggregate amount of all cash balances accruing in the Corporate Debtor s accounts after January 10, 2019 (i.e. the date of approval of the Resolution Plan by the CoC). However, it is submitted that as per the approved Resolution Plan the Resolution Applicant has committed that the cash balances of the Corporate Debtor will accrue and be paid to the Financial Creditors till the date of implementation of the Plan, i.e. till the date of payment of the Upfront Consideration. It is further submitted by the Applicant that the changes sought by the Resolution Applicant are in the nature of modifications to the terms of the approved Resolution Plan, and since the approved Plan is binding on all stakeholders, such amendments are not capable of being made at this belated stage. 4. Contentions of the Respondent :- 4.1. The Respondent, the present Resolution Applicant, who has stepped into the shoes of the Corporate Debtor mentions that subsequent to the date of approval of the Resolution Plan by the NCLT and until the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Steering Committee as per the minutes of the meeting has clearly informed the Resolution Applicant that sharing of data cannot be a condition precedent to implementation of the approved Resolution Plan and the same has to be duly implemented within the timelines contained therein. 5.2. The contention of the Resolution Applicant that the powers and functions of the Monitoring Agency is limited to conducting the day-today affairs and it cannot file any Application regarding the implementation of the Resolution Plan is highly misplaced. The Order of this Tribunal of 25.11.2019 while approving the Resolution Plan has clearly mentioned at Para 27 that 27.... Certified copy of this Order be issued on demand to the concerned parties, upon due compliance. That liberty is granted that if deem fit and legally permissible, can move Miscellaneous Application if required in connection with implementation of this Resolution Plan . Therefore, this Bench has no doubts in its mind that in the fitness of things the Monitoring Agency as well as the Resolution Professional who is part of the Monitoring Agency are duty bound to do all that is required to see the successful implementation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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