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TMI Blog2022 (8) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... have also been rejected. The Appellant aggrieved by the impugned judgment has come up in this Appeal. 2. The brief facts of the case are that Corporate Insolvency Resolution Process (CIRP) was initiated against 'M/s. Shivkala Developers Pvt. Ltd.'- (Corporate Debtor). The Appellant in pursuance of Application inviting Expression of Interest, submitted his Expression of Interest and thereafter filed the Resolution Plan. The Resolution Plan submitted by the Appellant was approved in the 10th Committee of Creditors' meeting held on 07.11.2018. The Committee of Creditors (CoC) authorised the Resolution Professional to file Application for approval of the Resolution Plan. CA- 734 of 2018 was filed by the Resolution Professional for approval of the Resolution Plan. The Successful Resolution Applicant- Appellant No.1 was permitted to be impleaded as one of the Respondents in CA- 734 of 2018 by the order of the Adjudicating Authority dated 03.03.2021. The Adjudicating Authority issued notice to the Successful Resolution Applicant to appear. On 04.08.2021, the Resolution Professional brought into notice of the Court that the Resolution Applicant has failed to deposit the performance guar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant having not shown interest in abiding by the plan and deliberately not appearing before the Adjudicating Authority, the Adjudicating Authority had no option except to reject the Application for approval of the Resolution Plan. 5. The Respondent No.2- Committee of Creditors has also filed a reply where it is submitted that in pursuance of the order of this Tribunal passed in this Appeal, the proposal given by the Appellant has been considered by the CoC and on 31.03.2022, CoC has rejected the proposal as submitted by the Appellant. 6. We have considered the submissions of the Counsel for the parties and perused the record. 7. The facts of the present case are undisputed that the Resolution Plan of the Appellant was approved by the CoC in its 10th meeting held on 07.11.2018 and thereafter, Resolution Applicant filed CA- 734 of 2018 before the Adjudicating Authority for approval of the Resolution Plan. The Appellant was not party to the said Application and it was only on 03.03.2021 that Appellant was made party to the Application CA- 734 of 2018. The copy of the Application filed by the Resolution Professional has been brought before us by an Additional Affidavit. In the Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A performance security may be specified in absolute terms such as guarantee from a bank for Rs. X for Y years or in relation to one or more variables such as the term of the resolution plan, amount payable to creditors under the resolution plan, etc.]" 10. The Resolution Plan when it was approved, thus, did not contain any provision for providing a performance security. It is only after the order of the Adjudicating Authority dated 03.03.2021 that non-submission of the performance guarantee is made an issue by the Resolution Professional. After the order dated 03.03.2021, the Resolution Applicant had not appeared before the Adjudicating Authority due to which bailable and non-bailable warrants were issued. The Adjudicating Authority in its impugned order has observed that despite order of the Adjudicating Authority dated 03.03.2021, Resolution Applicant has not shown any willingness to proceed with the Resolution Plan. In paragraphs 6, 7 and 8 of the impugned order, the Adjudicating Authority has made following observations:- "6. During the Course of hearing held on 12.11.2021, the Ld. Counsel for the RP submitted that its almost three long years' i.e., 1099 days since filing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceed with the Resolution Plan approved by the CoC. The Adjudicating Authority when failed to secure the presence of the Resolution Applicant even after issuance of bailable and non-bailable warrants, it has rightly taken a decision for rejecting the CA- 734 of 2018 praying for approval of the Resolution Plan. Due to non-serious, casual and non-diligent conduct of the Resolution Applicant, the Adjudicating Authority has rightly refused to approve the Resolution Plan. We do not find any error in the order of the Adjudicating Authority in rejecting CA-734 of 2018. More than three years have been passed from approval of the Resolution Plan by the CoC, the Adjudicating Authority has rightly also passed an order of liquidation. The Adjudicating Authority has given valid reason in the order for proceeding with the liquidation of the Corporate Debtor. 12. Now, we come to the order passed by the Adjudicating Authority rejecting I.A Nos. 5026 of 2021, 5027 of 2021 and 5028 of 2021 by which the Resolution Applicant has prayed for cancellation of non-bailable warrant. In the entire order, there is no discussion for the grounds given by the Appellant for cancellation of non-bailable warrant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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