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TMI Blog2022 (11) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... devolve to the board constituted by the Resolution Applicant on the Transfer Date which will be within 15 days of the Closing Date. The Transfer Date relates to the date when the management/ corporate debtor goes in the hands of the board of the Successful Resolution Applicant. It is not disputed that the said bank guarantees were invoked vide letters dated 18.10.2021 (attached at Page- 169- 173 of the Appeal Paper Book) and the SRA replied to these invocation letters stating that it was not liable to pay any amount post such invocation, as the Bank Guarantees were invoked prior to Transfer Date i.e 04.01.2022. Hon ble Supreme Court in the matter of Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. [ 2021 (4) TMI 613 - SUPREME COURT ] and Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta Ors. [ 2019 (11) TMI 731 - SUPREME COURT ] wherein it is clearly held that Successful Resolution Applicant cannot be subjected to surprise claims which are not part of Resolution Plan. Any purported liability falling on the Successful Resolution Applicant prior to Transfer Date in respect of invocation of bank guarantees shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Adjudicating Authority took place. The request for paying the invocation amount of Rs. 29.30 crores were sent by Bank of Maharashtra to the Successful Resolution Applicants vide letter dated 18.10.2021. Accordingly, other bank guarantees were also invoked by the consortium member banks through various letters, the BOM, SBI and BOB informed the SRA that the bank guarantees had been invoked by the beneficiaries who had asked for payment of the invoked bank guarantees as per the terms of the approved resolution plan. Responding to these letters, the SRA informed the respondent banks that the invocation of the bank guarantees took place before the management and control of the corporate debtor was handed over to the SRA and therefore, the SRA cannot be held responsible for events taking place prior to the Transfer Date and further denied its liability to pay the invocation amount of the bank guarantees to the respective banks. 5. The Appellant has stated that thereafter Bank of Maharashtra filed an IA No. 530 of 2022 in CP No. (IB) 1222/(MB) 2019 before the Adjudicating Authority seeking direction to the SRA for paying 52.50% of the invoked bank guarantees, and subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tilisation of Fund s , specifically at Serial No. 2 which reads Payment to Secured Financial Creditors totalling to Rs. 192.24 crores the double asterisk (**) appearing in the footnote of the table quite categorically states that the amount of Rs. 192.24 crores is included in which equivalent to 52.50% of invoked bank guarantees issued by secured financial creditors pertaining to large projects. 9. In connection with the terms of payment to Secured Financial Creditors after invocation, the Learned Senior Counsel for the Appellant has adverted to Para 3.7 (2) (c) in the Resolution Plan to claim that the SRA/ corporate debtor is obliged to make payment to the secured financial creditors under the Resolution Plan which is in accordance with the treatment provided in the Resolution Plan upon invocation. 10. The Learned Senior Counsel for Appellant has relied on the following judgments in support of her contentions:- Andhra Bank v. F.M. Hammerle Textile Ltd. (2018) SCC OnLine NCLAT 883. Export Import Bank of India v. Resolution Professional JEKPL Private Ltd. (2018) SCC OnLine NCLAT 465. Canara Bank v. IVRCL Limited (2019) SCC OnLine NCLT 5327. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Bank of Baroda used in issue of bank guarantees. 14. The Learned Senior Counsel for Respondents No. 1 2 has argued that the Resolution Plan was approved by the CoC on 27.02.2021 and finally approved by the Adjudicating Authority on 16.11.2021. He has strongly argued that the Closing Date of 31.12.2021 and Transfer Date of 04.01.2021 which are defined in the Resolution Plan and not disputed by the Appellant very clearly establish that the management/ control of the corporate debtor would continue in the hands of Resolution Professional till the Transfer Date and will be handed over to the boards constituted by the Resolution Applicant on Transfer Date which would be within 15 days from the Closing Date . He has further submitted that the invocation of the bank guarantees took place vide letters dated 18.10.2021, sent by the beneficiaries Indian Oil Corporation and Oil India Limited to the respective banks and which was prior to the Transfer Date of 04.01.2022. 15. The Learned Senior Counsel for Respondent No. 1 2 has adverted to Para 3.7 which is regarding Treatment under the Resolution Plan for the Financial Creditors wherein in Para 3.7(2)(c) payment to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so in the matter of Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta Ors. (2020 (8) SCC 531). 18. We find that the issue for consideration in the present appeal is limited to whether the Appellant and other member banks of consortium were entitled to payment towards live Bank Guarantees related to large projects under Resolution Plan invoked prior to the Transfer Date by the Successful Resolution Applicant. In this regard reference is made to Para 3.7(2)(c) of the Resolution Plan which states as herein:- Non-Fund based Facility i.e. EPC- Live Bank Guarantee- 2 Large Projects The Resolution Applicants shall make payment to the respective Financial Creditors to the extent of 52.50% of the invocation amount within 60 days of invocation of such Bank Guarantee, that are currently live, as mentioned below, in the event of and with respect to, the invocation of such Bank Guarantees subsequent to the Transfer Date. (emphasis supplied) 19. We note that Para 3.5 of the Resolution Plan (at Page 91 of the Appeal Paper Book Volume-I) shows the following :- 3.5 Source of Funds and its Utilization a. Source of Funds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 3.5 and 3.7 of the resolution plan that payment of live bank guarantee for two large projects will be made in the event of and with respect to the invocation of such bank guarantee subsequent to the Transfer Date . We have earlier noted that the Transfer Date relates to the date when the management/ corporate debtor goes in the hands of the board of the Successful Resolution Applicant. It is not disputed that the said bank guarantees were invoked vide letters dated 18.10.2021 (attached at Page- 169- 173 of the Appeal Paper Book) and the SRA replied to these invocation letters stating that it was not liable to pay any amount post such invocation, as the Bank Guarantees were invoked prior to Transfer Date i.e 04.01.2022. We follow the judgment of the Hon ble Supreme Court in the matter of Kanataru Rajeevaru v. Indian Young Lawyers Association (Supra) wherein it is held that in case a certain provision is carefully punctuated, weightage should be given to punctuation. 24. We also follow the judgment of Hon ble Supreme Court in the matter of Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. and Committee of Creditors of Essar Steel India Ltd. ..... 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