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TMI Blog2022 (8) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... d extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan. This appeal is covered by the aforesaid judgement - the impugned order is hereby affirmed - appeal dismissed. - Company Appeal (AT) (Insolvency) No. 798 of 2021 - - - Dated:- 18-8-2022 - [ Justice Anant Bijay Singh ] Member ( Judicial ) And [ Ms. Shreesha Merla ] Member ( Technical ) For the Appellant : Mr. Aviral Saxena and Mr. Dikanj Mishra , Advocates For the Respondents : Mr. Gautam Swarup , Mr. Kartikeya Jaiswal and Mr. Gunjan Jindal , Advocates JUDGMENT Justice Anant Bijay Singh ; This Appeal has been preferred by the Appellant being aggrieved and dissatisfied by the order dated 04.05.2020 in MA 3711/2019 in C.P. (IB) 3457/MB/2018 passed by the Ld. Adjudicating Authority [National Company Law Tribunal, Mumbai Bench-I (Special Bench)] whereby and where under the Adjudicating Authority passed the following orders: 34. Given the above observations, we approve the resolution plan with modifications, as mentioned above, which shall be binding on the Corporate debtor and its employees, members, cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The functional requirements of the contract were elaborated in Clause 11.2, Key requirements in 11.6 and the performance requirements were set out in Clauses 11.8 and 11.9. iv) From June 2016 to June 2019, the Respondent No. 1, on account of various deficiencies, was levied with pre-estimated damages to the tune of Rs. 91 Crores. The pre-estimated damages were prepared and compiled on the basis of calculations and billing details provided by each of the 38 deports of the Appellants. Time to time, Show Cause Notice in respect of submitted invoices were also issued to Respondent No. 1 by the concerned deports of the Appellant Corporation. v) The Project kick off start date commenced on 12.10.2015. User Acceptance Test was conducted in two pilot projects on 12.05.2016. The roll out period in all deports of the Appellant commenced from May 2016 to October 2016. Go-live period in all deports of the Appellant was during the period of August 2016 to June 2017. vi) On 01.12.2017, the Commercial Date of operation commenced, from which, the period of contract was for a period of 6 years. In view of the penalty imposed as per Service Level Agreement on the Respondent No. 1, no payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19, a Resolution Plan was filed by the Successful Resolution Applicant /Respondent No. 3 namely M/s Ebix Software India Pvt. Ltd. and on 08.01.2020, the Resolution Professional/Respondent No. 2 was informed about penalty of Rs. 91 crores and the Respondent No. 2 was requested to take necessary action so that the Appellant could be paid the said outstanding amount. xii) Further, on 08.01.2020, the Appellant informed the Resolution Professional that 135 bills of some deports are yet to be received and ensure the payment of amount to the Appellant. On 09.01.2020, the Respondent No. 2, for the first time, gave a preliminary response to the letter of the Appellant dated 08.01.2020 and alleged that the Respondent No. 1 had submitted invoices to the Appellant on monthly basis and as against pending 135 invoices, 85 invoices were submitted. The Resolution Professional conveyed tht all the invoices were being re-submitted. The Respondent No. 2, in complete ignorance of all the books of accounts, letter addressed to the Respondent No. 1 by the Appellant and other relevant material which he would have perused and taken custody of in terms of the IBC, as amended, alleged that the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by the Respondent No. 2 for approval was contrary to the express provisions of the Code and the regulation therein. 4. It is further submitted that the Ld. Adjudicating Authority failed to appreciate that the Respondent No. 2 acted ion material illegality and irregularity while submitting the Resolution Plan in terms of Section 30(6) of the Code. 5. It is further submitted that the Ld. Adjudicating Authority failed to appreciate that even after being in complete control over all the documents and Management of Affairs of the Respondent No. 1, the Respondent No. 2 has completely over-looked the amounts liable to be paid to the Appellant by the Respondent No. 1 and the non-inclusion of such heavy amounts in the Resolution Plan could not have gone unnoticed under any circumstances. 6. It is further submitted that the Ld. Adjudicating Authority has also failed to appreciate that the Appellant, even after being one of the largest 18 Operational Creditors, was neither informed about constitution of nor included in the Committee of Creditors. Based on these grounds the impugned order is fit to be set aside and the Appeal be allowed. 7. The Ld. Counsel for the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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