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TMI Blog2021 (9) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... IA No. 16/2021 to withdraw the Resolution Plan and set aside the Order of the Ld. Adjudicating Authority dated 10th September 2020 whereby the plan of the Respondent/Applicant was approved. Having observed by the Ld. Adjudicating Authority that it cannot recall the Order of approval of the Resolution Plan and cannot direct the refund of the EMD and having rejected the Application filed by the Respondent bearing IA No. 16/2021, the Ld. Adjudicating Authority ought to have considered the prayer as made by the Appellant with regard the passing of Liquidation Order in view of non-implementation of the Resolution Plan by the Resolution Applicant and completion of 330 days. If 330 days completes and the Resolution Applicant failed to implement the plan, the Adjudicating Authority ought to have passed the Order of Liquidation as per the provision of the I B Code, 2016 - This Tribunal is not going into the aspect with regard to the forfeiture of the performance security and withdrawal of the plan. This Tribunal comes to a conclusion that 330 days have expired and upon non-implementation of the plan by the Resolution Applicant, the Adjudicating Authority ought to have passed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Plan amount was to be paid within 15 days of receipt of Order by the Respondent. While so, the Respondent sent an e-mail dated 23rd September 2020 to the members of Monitoring Committee that he wanted additional 30 days time to deposit a sum of ₹ 25,00,000/- after adjusting Performance Guarantee of ₹ 25,00,000/- and 45 days for the balance of ₹ 50,00,000/-. However, the members of Monitoring Committee instead of rescheduling payment as sought by the Respondent, asked the Respondent to make part payment of ₹ 25,00,000/- by 29th September 2020. (5) While matters stood thus, the Learned Counsel for the Appellant submitted that the Respondent did not implement the plan. The Appellant on 21.10.2020 sent an e-mail to the Financial Creditor and the Respondent requesting them to come to a conclusion on payment terms of the approved plan. However, an e-mail dated 23rd October 2020 received from the Respondent i.e., Successful Resolution Applicant seeking withdrawal of the approved Resolution Plan and refund of Performance Guarantee of ₹ 25,00,000. However, the issue of withdrawal of Plan by the Respondent was discussed in the Monitoring Committee Meet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent on 10.06.2021 by sending an e-mail to Kevin Thomas [email protected]. In the aforesaid e-mail the Order of this Tribunal dated 10.06.2021 extracted verbatim in the e-mail. (9) Upon the Service of Notice on the sole Respondent and to the Counsel appeared before the Ld. Adjudicating Authority, this Tribunal comes to a conclusion that Service of Notice was effected on the Respondent and also the Counsel on record for the Respondent before the Ld. Adjudicating Authority. Having effect of Service of Notice , none appeared for the Respondent nor present any of its representatives in person. Accordingly, this Tribunal passed the following Order on the basis of Materials available before this Tribunal . (10) It is an admitted fact that the Corporate Debtor i.e., Palm Lagoon Backwater Resorts Private Limited was under the CIRP pursuant to an Application filed by the Asset Reconstruction Company (India) Limited under Section 7 of the IBC 2016 before the NCLT Chennai Bench. Later, upon the Constitution of the NCLT, Kochi Bench the said case was transferred to the Kochi Bench and renumbered as TIBA/9/KOB/2019. The Adjudicating Authority (NCLT, Kochi Bench) ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s e-mail dated 23rd October 2020 addressed to the Appellant stated that it is impossible for the Resolution Applicant to execute the Resolution Plan and requested the Appellant to permit them to withdraw the Resolution Plan for the reason that they do not want to act in contravention of any guidelines and regulation laid down by RBI and SARFAESI Act 2002. Upon the receipt of the e-mail by the Appellant, the Monitoring Committee of the Corporate Debtor in their meeting held on 30th October 2020 discussed the issue and decided to file an Application before the Ld. Adjudicating Authority for liquidation of the Company. In view of the decision taken in the Monitoring Committee meeting held on 30th October 2020, the Appellant filed the Application before the Ld. Adjudicating Authority bearing MA No. 186/KOB/2020. (16) While so, the Respondent herein also filed an IA No. 16/2021 praying the Adjudicating Authority to recall the Order of the Tribunal dated 10.09.2020 in MA/113/2020 and permit the Applicant to withdraw the Resolution Plan submitted on 31.01.2020 in respect of the Corporate Debtor. The Ld. Adjudicating Authority heard both the Applications and passed the Common Order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing IA No. 16/2021 praying the Tribunal to permit the Respondent/Applicant in IA No. 16/2021 to withdraw the Resolution Plan and set aside the Order of the Ld. Adjudicating Authority dated 10th September 2020 whereby the plan of the Respondent/Applicant was approved. (19) The Ld. Adjudicating Authority at para 27 observed that it cannot exercise its powers under Section 60(5) of the I B Code, 2016 and recall its own Orders. Therefore, the Adjudicating Authority did not recall its Order dated 10th September 2020 regarding approval of the Resolution Plan, and cannot direct the RP to refund the EMD of the Respondent/Resolution Applicant. (20) Having observed by the Ld. Adjudicating Authority that it cannot recall the Order of approval of the Resolution Plan and cannot direct the refund of the EMD and having rejected the Application filed by the Respondent bearing IA No. 16/2021, the Ld. Adjudicating Authority ought to have considered the prayer as made by the Appellant with regard the passing of Liquidation Order in view of non-implementation of the Resolution Plan by the Resolution Applicant and completion of 330 days. If 330 days completes and the Resolution Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating Authority, praying the Adjudicating Authority to pass an Order of Liquidation of the Corporate Debtor for the aforesaid reasons. (24) As discussed above, this Tribunal is of the view that the Respondent failed to implement the plan in its totality and on completion of 330 days, the Company ought to have liquidated by passing appropriate orders. Section 12 of the I B Code, 2016 stipulates the time limit for completion of insolvency resolution process, proviso to Sub Section 3 of Section 12 states that Provided further that the Corporate Insolvency Resolution Process shall mandatorily be completed within a period of 330 days from the insolvency commencement date, including any extension of the period of corporate insolvency resolution process granted under this section and the time taken in legal proceedings in relation to such resolution process of the corporate debtor. (25) As per the above provision of Law, this Tribunal comes to a conclusion that 330 days have expired and upon non-implementation of the plan by the Resolution Applicant, the Adjudicating Authority ought to have passed the Order of Liquidation of the Corporate Debtor. For the aforesaid reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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