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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 ..... e Monitoring Agency of the Corporate Debtor who is the Applicant:- 1.1. The present Application has been filed by the Monitoring Agency of the Corporate Debtor against the Resolution Applicant u/s. 60(5) of the IBC 2016 seeking, inter alia, a direction to the Resolution Applicant to forthwith implement the Resolution Plan as approved by NCLT on 25.11.2019. 1.2. Through this Application the Applicant seeks urgent directions to the Resolution Applicant to ensure that no acts and omissions hampers the resolution of the Corporate Debtor and thereby undermines the letter, spirit, function and purpose of the Code. 2. Background:- 2.1. The Resolution Plan submitted by the Resolution Applicant/ Respondent in this case, Royale Partners Investmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 letter to the Applicant seeking that Resolution Plan be amended to mean that all receivable accruing in the Company after 10.01.2019 (i.e. the date of LoI) would be classified as "existing receivables" and be available for mandatory early redemption of the NCDs. The Applicant on the very next day, i.e. on 04.06.2019, categorically informed the Resolution Applicant that no amendment to the Resolution Plan would be possible. 3.4. The Resolution Plan as approved by the Tribunal in its Order dated 25.11.2019 has the following clause:- "Proposal for Financial Creditors: ..... viii. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary 2020 for implementation of the Resolution Plan would be considered as breach of the Resolution Plan and that the lenders would be entitled to approach the Hon'ble NCLT informing about such default. 3.6. The Applicant mentions that the Resolution Applicant has time and again sought to effect 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (F) and Clause 3.2 (viii) of the Resolution Plan demonstrates that any payment made under the terms of Clause 3.2 of the Resolution Plan shall be adjusted from the Upfront Consideration and not in addition to Upfront Consideration. In light of this, the Petitioner mentions that the cash balances which are proposed to accrue to the financial creditors should be adjusted from the Consideration payable by the Respondent. 4.3. The Resolution Applicant who has stepped into the shoes of the Corporate Debtor mentions that as per para 28 of the Resolution Plan approval Order of the NCLT dated 25.11.2019, the Resolution Professional was to handover all records etc. to the Resolution Applicant. However, the Resolution Applicant mentions that it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 Resolution Plan and can file any Application before this Bench for ensuring the successful implementation of the Plan. 5.3. The main contention of the Resolution Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor's Company will go only to the Financial Creditor and not to the Resolution Applicant. Therefore, the contention of the Resolution Applicant is ill-founded and untenable. 5.5. 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 Rs. 420 crores in this instant case. As per the calcula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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