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TMI Blog2020 (1) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... utory requirement has to be in toto. When the language of the Code is clear and explicit the Adjudicating Authority must give effect to it whatever may be the consequences - In view of non-implementation of the approved resolution plan by Resolution Applicant; Liquidation has to follow in terms of the provisions of section 33(3) of the Code. Seeking forfeiture of performance guarantee - Regulation 36B (4A) of CIRP Regulations - HELD THAT:- Regulation 36B (4A) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 clearly provides that performance security shall stand forfeited if the resolution applicant fails to implement the approved resolution plan in accordance with the terms of the plan and its implementation schedule. Therefore, as the respondent resolution applicant has failed to implement the approved resolution plan, the performance guarantee of ₹ 5 Crore furnished by the respondent resolution applicant stands forfeited in terms of Regulation 36B (4A) of CIRP Regulations. Seeking restraint on the encashment of the bank guarantees executed by the corporate debtor - HELD THAT:- The concerned banks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of corporate resolution process against M/s. Tecpro Systems Limited ( Corporate Debtor ). The application was admitted on 7th August, 2017 imposing moratorium under section 14 of the Code and the applicant, Mr. Venkatesan Sankaranarayan was appointed as the Interim Resolution Professional. In the first Committee of Creditors meeting held on 13-9-2017 the applicant Interim Resolution Professional was appointed as the Resolution Professional. 3. Respondent No. 1 M/s. Kridhan Infrastructures Private Limited had submitted an updated Resolution Plan in respect of Corporate Debtor, which was approved by the Committee of Creditors in their 15th CoC meeting held on 8-3-2019 with majority vote of 89.92%. Subsequently the Adjudicating Authority also approved the resolution Plan under section 31 of the Code vide order dated 15-5-2019. 4. It has been alleged that there has been inordinate delay in implementation of the Resolution Plan, as the successful resolution applicant, M/s. Kridhan Infrastructures Private Limited has miserably failed to infuse equity funds as per the terms of the Resolution Plan. Besides the successful resolution applicant has not taken over the control of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016, Regulation 39D of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the fee payable to the Liquidator and support team (EY Restructuring LLP) shall be as approved by the erstwhile CoC as follows: Months Fees as a % of Receipts from 0-12 12-24 More than 24 Sale of Fixed Assets 1.00% of the amount realized 0.75% of the amount realized 0.50% of the amount realized Return of live BGs 0.50% of the amount returned Months Fees as a % of Receipts from 0-24 24-60 More than 60 Arbitration proceedings/claims/projects recovery 1.25% of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution for RP to continue till further order the Adjudicating Authority RESOLVED THAT the erstwhile RP Mr. Venkatesan Sankaranarayan, to act as the Resolution Professional from the date of filing of the liquidation application with the Adjudicating Authority until further orders/directors, as may be, received from Adjudicating Authority. 6. During hearing on 18.12 2019 an opportunity was afforded to respondent Nos. 1 to 3 to file reply within one week thereof. However, neither any reply was filed nor it could be shown as to how the approved resolution plan could at all be implemented. 7. Admittedly the resolution applicant has failed to adhere to any of their timelines for equity infusion even after a period of about 8 months since approval of the resolution plan. There is force in the contention that the respondents have repeatedly failed to honour their own commitments and there was delay in infusion of equity, upfront payment and taking control of the management of the Corporate Debtor, which has threatened the going concern status of the corporate debtor severely. 8. In the facts the erstwhile CoC in its meeting held on 11-11-2019 has passed a resolution for liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayer in the application that the performance guarantee of ₹ 5 Crore furnished by the successful resolution applicant may be forfeited in terms of Regulation 36B (4A) of CIRP Regulations. The successful resolution applicant M/s. Kridhan Infrastructures Private Limited has submitted a performance guarantee of Rupees Five Crores in the corporate debtor's Escrow Account on 13-6-2019. 14. Regulation 36B (4A) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 provides as follows: (4A) The request for resolution plans shall require the resolution applicant, in case its resolution plan is approved under sub-section (4) of section 30, to provide a performance security within the time specified therein and such performance security shall stand forfeited if the resolution applicant of such plan, after its approval by the Adjudicating Authority, fails to implement or contributes to the failure of implementation of that plan in accordance with the terms of the plan and its implementation schedule. 15. Regulation 36B (4A) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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