9911796707
TMI Blog2021 (9) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... m the use of the corporate debtor's diagnostic equipment. It does not explain why the successful resolution applicant did not bring in the funds from external sources to revamp the corporate debtor as per the resolution plan. This only goes to show that the successful resolution applicant is hedging its bets. The present application is only to reagitate practically the same issues which were once considered by this Adjudicating Authority and orders passed on 12.04.2021., directing the successful resolution applicant to make the outstanding payments under the approved resolution plan by 30.06.2021. The conduct of the successful resolution applicant is completely lacking in bona fides . It is an attempt to arm-twist the Adjudicating Authority into acceding to its request for a direction to the financial creditors to what would practically be a renegotiation of the terms of the resolution plan. This Adjudicating Authority is of the view that although the Resolution Applicant has grossly failed in meeting its commitments in respect of implementation of the Resolution Plan, liquidation is the last resort when all other available options fail in the CIRP. In the interest of al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 12.11.2018. Thereafter, the NCLT, Mumbai Bench vide Order dated 22.01.20l9 approved the Resolution Plan. After the approval of the Resolution Plan, Mr. Sundaresh Bhat (hereinafter referred as the Erstwhile Resolution Professional ) had conducted meetings of Lenders in presence of one representative each of Resolution Applicant and the erstwhile Board of Directors of the Corporate Debtor. The applicant states that one of the Financial Creditors, namely, Siemens Financial Services Pvt. Ltd. requested for entire payment of ₹ 23.40 lakh on or before 31.03.2019 to release the entire security held by it. However, the other lenders did not agree and the said matter was not concluded as the Resolution Applicant sought time to get an independent professional. Further, Erstwhile Resolution Professional provided revised minutes of the First Lenders' Meeting wherein the amount with regard to Siemens Financial Services Pw. Ltd. has been changed to ₹ 33.00 lakh. The Erstwhile Resolution Professional informed the Resolution Applicant that an amount of ₹ 42.97 crore had to be paid by the Resolution Applicant before 31.03.2019 as per the Order of Hon'ble NCLT, Mumbai B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entity has been managing the Corporate Debtor post the Effective Date, The entity is making the payments to the creditors under the Approved Resolution Plan and to the employees and suppliers of the Corporate Debtor to maintain the Corporate Debtor as going concern. 6. The applicant states that the 5th Lenders' Meeting was held on 24.01.2020, wherein the Resolution Applicant requested the lenders for allowing revision in the Resolution Plan with regard to the timelines of the payments to be made towards the creditors of the Corporate Debtor. Axis Bank Limited, one of the Financial Creditors, imposed conditions that the moneys deposited for payment to Financial Creditors of the Corporate Debtor in August, 2019 shall be eligible for forfeiture in case on noncompliance by the Resolution Applicant in implementation of the approved Resolution Plan. The lenders directed that such conditions shall be included in the request by the Resolution Applicant for revision in Resolution Plan. Otherwise, the lenders would not consider the said request. Further, the lenders directed the Resolution Applicant to return/refund ₹ 2.00 crore which had been deposited by Supra Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.03.2021. However, the same has not been done. Till the date of said hearing only around ₹ 15.00 crore was paid by the Resolution Applicant. 10. Ld. Counsel for the Monitoring Committee, Mr. Abhishek Sharma stated about non-compliances on the part of the Resolution Applicant. Ld. Senior Counsel Mr. Joy Saha appearing on behalf of State Bank of India states that there are no settlement talks going on. The Liquidation Order needs to be passed as there is no provision for extension of payment time provided in the implementation of the Resolution Plan. The learned senior counsel for State Bank of India stated that possession of the Corporate Debtor ought to be handed over to the Monitoring Committee as the Resolution Applicant is simply enriching from the equipment of the Corporate Debtor without implementation of the Resolution Plan. 11. This Adjudicating Authority after hearing all the counsel, constraining pandemic situation in the country etc., had passed an Order on April 12, 2021 allowing time upto 07.06.2021to the Resolution Applicant and from the total outstanding amount of ₹ 30.00 crore to pay ₹ 20.00 crore on or before 07.06.2021 to show their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @ Pg. 14 of Reply affidavit dt. 23.11.2020 to MA 32); (x) The amount of ₹ 12 Crore has been paid by the RA from its personal funds as no financial institution agreed to provide loans due to incomplete hand over by FCs. (Averred at Para 25 @ Pg. 15 of Reply affidavit dt, 23.11.2020 to MA 32); (xi) The RA has been making full payment of the dues of the doctors, technicians, employees and vendors throughout the period and has been keeping the company a going concern and has paid an amount of ₹ 10.04 Crores (Averred at Para 28 @ Pg. 16 and at Para 30 @ Pg. 17, annexed at Pg. 51 of Reply affidavit dt. 23.11.2020 to MA 32 and Pg. 51 52 of Addl, affidavit dt. 01.12.2020); (xii) Despite not being given the Complete handover of the company the RA has been investing out of its own funds to purchase new diagnostic equipment. (Averred at Para 12 @Pg. 09 of I.A. 62/2021); (xiii) RA has already paid an amount of ₹ 8.04 Crores to SBI (Averred at Para 3 @ Pg. 1 of the Settlement affidavit dt. 15.03.2021), RA has duly deposited further ₹ 3 Crore with SBI in March 2021 (Averred at Para 4 @ Pg. 2 of the Addl. affidavit Dt. 8.4.2021); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Committee of Creditors of Amtek Auto v Dinkar T Venkatasubramaniam [2020 SCC Online SC 1187], Evert taking the case of the successful resolution applicant at its highest, it can only explain that part of the resolution plan which deals with generation of revenues from the use of the corporate debtor's diagnostic equipment. It does not explain why the successful resolution applicant did not bring in the funds from external sources to revamp the corporate debtor as per the resolution plan. This only goes to show that the successful resolution applicant is hedging its bets. The attempt to invoke some kind of special equity on the grounds that the equipment of the corporate debtor which was put in the possession of the successful resolution applicant, was not in working condition, etc. should be completely nipped in the bud. 15. This is also in the teeth of the order dated 12.04.2021, whereby the Adjudicating Authority had given time until 07.06.2021 to complete the payments in accordance with the plan. The present application is only to reagitate practically the same issues which were once considered by this Adjudicating Authority and orders passed on 12.04.2021., direc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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