9911796707
TMI Blog2024 (4) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... licant as contended by the Appellant? - Whether the order dated 13.01.2023 passed by the Adjudicating Authority is unsustainable and sufficient grounds have been made by the Appellant to set aside the order? - Whether due to lapse of Air Operation Certificate granted by DGCA on 20.05.2022, as on date the Successful Resolution Applicant cannot implement the Resolution Plan? - HELD THAT:- The Air Operation Certificate was very well in operation on the date when implementation application was filed by the SRA before the Adjudicating Authority as well as on the date when order was passed by the Adjudicating Authority i.e. 13th January, 2023 hence no infirmity can be found in the findings of the Adjudicating Authority that condition 7.6.1(d) was fulfilled. The Air Operation Certificate was operative and granted till 19th May, 2023 and during this period SRA was not permitted to commence his operations because of challenge by the Appellant to fulfilment of the conditions precedent. The Order dated 13th January, 2023 passed by the Adjudicating Authority upholding the fulfilment of conditions precedent has been challenged by the Appellant in these Appeals and during pendency of these Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C FLOWERS ASSET RECONSTRUCTION PRIVATE LTD. AND PUNJAB NATIONAL BANK VERSUS THE CONSORTIUM OF MR MURARI LAL JALAN AND MR FLORIAN FRITSCH AND ANR [ 2024 (1) TMI 1021 - SUPREME COURT ] was not to happen. On failure to comply with the offer made by Appellant by affidavit dated 16.08.2023, both the Appeals pending in this Tribunal are now to be decided on merits. The submission of the Appellant that non-deposit of INR 150 crores leads to failure of Resolution Plan, cannot be accepted. The consequence of non-deposit of INR 150 crores is that these Appeals have to be heard on merits and the question, which has arisen in the Appeal has to be decided regarding compliance of conditions precedent by the SRA by 20.05.2022 - Further submission of the Appellant that this Tribunal may exercise jurisdiction under Section 33, sub-section (3) in directing liquidation of the Corporate Debtor due to non-compliance of deposit of INR 150 crores also cannot be accepted. For passing an order under Section 33, sub-section (3), there has to be adjudication that Resolution Plan approved by the Adjudicating Authority has been contravened by the Successful Resolution Applicant. The direction of Hon ble Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.3 within a period of 30 days from today. The SRA to bear all necessary expenses for creation of necessary charge - Performance Bank Guarantee of INR 150 crores, which is lying with the Monitoring Committee/ MC Lenders, shall be adjusted towards the first tranche payment of INR 350 crores as INR 200 crores have already been paid by the SRA. By adjustment of PBG as per the Resolution Plan, the first tranche of payment of INR 350 crores shall be completed - Steps shall be taken for re-constitution of the shares as per the Resolution Plan forthwith. (5) Out of the first tranche payment of INR 350 crores, payments shall be made to the workmen and employees and the creditors as per the Resolution Plan, including the payment of CIRP cost as per the Resolution Plan, which payment shall be completed within 60 days from the date of this judgment - The SRA shall submit an Application for re-issue of Air Operation Certificate which may be obtained within 90 days from the date of this judgment - closing date shall be 90th day from the date of this judgment, on which date, handing over of the Corporate Debtor to the SRA by the Monitoring Committee shall be completed. Application disposed off. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... topped its operations since, April, 2019. In pursuance of request for Resolution Plan, Resolution Plan was submitted by the Respondent No.1 - Consortium of Mr. Murari Lal Jalan and Mr. Florian Fritsch (hereinafter referred to as Successful Resolution Applicant in short SRA ). Based on the assessment of the commercial feasibility and viability of the resolution plan, including the future cash flow and revenue projections, commercial proposal and Techno-Economic Evaluation, after several rounds of negotiations, the CoC approved the Resolution Plan dated 12.09.2020 along with the first addendum dated 02.10.2020 with a majority of 99.22% vote share. On an application filed by the Resolution Professional, the Adjudicating Authority vide its order dated 22.06.2021 approved the Resolution Plan. Several Appeals were filed challenging order dated 22.06.2021 in this Tribunal. This Tribunal vide order dated 21.10.2022 approved the Resolution Plan. Against the approval of Resolution Plan passed by order dated 21.10.2022, Appeals were filed in the Hon ble Supreme Court which too were dismissed on 30.01.2023. 3. As per the Resolution Plan, the effective date was contemplated as 90 days from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition precedent by SRA. In the Joint Lenders Meeting held on 29.09.2022 a decision was taken by all MC Lenders that the SRA may file an application to the Adjudicating Authority towards seeking necessary direction regarding fulfilment of the condition precedent. In Joint Lender Meeting, it was stated on behalf of the MC Lenders that they will fully support the implementation of the Resolution Plan. 6. In accordance with the decision taken in the Joint Lenders Meeting dated 29.09.2022, SRA in October, 2022 filed the Implementation Application seeking direction to Respondents to allow the SRA to infuse the funds into the Corporate Debtor and take control and management of the Corporate Debtor and execute the necessary documents in this regard so that the Resolution Plan can be implemented, which application was numbered as I.A. No.3398 of 2022. Another application I.A. No.3508 of 2022 was filed by the SRA praying for exclusion of period from 20.05.2022 till the date Implementation Application is decided from 180 days for infusion of the first tranche of funds and achievement of the closing date. Both the applications filed by the SRA were opposed by the MC Lenders. MC Lenders sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 13.01.2023. In the Appeals following reliefs have been sought by the Appellant: (a) Set aside the Impugned Order dated January 13, 2023 passed by the Hon ble National Company Law Tribunal, Mumbai in I.A No. 3358 of 2022 and I.A. No.3508 of 2022 filed in Company Petition (I.B.) No. 2205 of 2019; and (b) Hold and/or clarify that the Conditions Precedent as contained in Clause 7.6.1 of the Resolution Plan have not been met and remand the Resolution Plan to the CoC for fresh consideration/approval, in light of the non-fulfillment of the Conditions Precedent thereby altering the commercial wisdom basis which the CoC had originally approved the Resolution Plan; and (c) Pass such other or further order(s) or direction(s) as this Hon'ble Appellate Tribunal may deem fit and proper in light of the above mentioned facts and circumstances of the present case. 10. The Appeal was heard by this Tribunal on 03.03.2023 and after hearing learned counsel for the Appellant and learned counsel for the SRA passing of interim order was declined. In Para 15 and 16 of the order following was directed: 15. The steps regarding the implementation of the plan has to be taken by the SRA which need to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he SRA, the IA No.1863 of 2023 pending before the Adjudicating Authority shall be withdrawn. IA No.2028-2029 of 2023 is allowed accordingly. 14. In I.A. No.2159-2160 of 2023, this Tribunal directed the MC Lenders not to invoke the Performance Bank Guarantee and for invocation the MC Lenders may take leave of the Adjudicating Authority. In I.A. No.2159-2160 of 2023 following order was passed in Para 20: 20. In view of the aforesaid, we direct that MC Lenders shall not invoke the Performance Bank Guarantee in the facts of the present case as on date, and for invocation, if any, MC Lenders may take leave of the Adjudicating Authority. The IA Nos.2159-2160 is disposed of accordingly. 15. Aggrieved by the order dated 26.05.2023 passed by this Tribunal, Appellants have filed Civil Appeal Nos.4131-4134 of 2023 in the Hon ble Supreme Court in which Appeals no interim order was passed by the Hon ble Supreme Court. 16. During course of hearing of these appeals an affidavit was filed by the Appellants on 16.08.2023. The SRA filed two applications I.A. No.3801-3802 of 2023 in which I.A. several prayers were made. In the said I.A. an order was passed by this Tribunal on 28.08.2023. In Para 10 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PF/ Gratuity Application is not allowed, the Resolution Plan cannot be implemented under Section 30 (2) (e) and in such event direct the MC Lenders and the Corporate Debtor to jointly or severally, forthwith refund all amounts deposited/ infused/ invested by the Successful RA in the Corporate Debtor until such date including share application money of INR 200 Crores and PBG amounts of INR 150 Crores without any delay, protest, demur, cavil, deductions, or claims within 24 hours from 15 October 2023; (h) pass any other such order(s) as this Hon'ble Appellate Authority may deem fit and proper in the facts and circumstances of this case. 17. With regard to SRA s prayer for extension of 30 days time for deposit of Rs.100 Crore, no objection was raised. The SRA was asked to deposit Rs.100 Crore by 31.08.2023 and another Rs.100 Crore by 30.09.2023. It was contended by the Appellants that the SRA has to deposit further Rs.150 Crores to complete the first tranche payment of Rs.350 Crores. This Tribunal heard the parties and passed order dated 28.08.2023 allowing prayer (a) in the application for directing the Appellants to adjust the Performance Bank Guarantee of Rs.150 Crores as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 16 August 2023 shall be decided by the NCLAT in the pending appeal. 26. The order dated 28 August 2023 of the NCLAT is modified in part in terms of the above directions and, hence, the permission which was granted to the SRA to adjust the last tranche of Rs.150 crores against the PBG shall stand substituted by the above directions. 27. The NCLAT is requested to endeavour an expeditious disposal of the appeal by the end of March 2024. 28. The appeals are accordingly disposed of. 18. After aforesaid order of the Hon ble Supreme Court dated 18.01.2024, the SRA could not deposit amount of Rs.150 Crores on or before 31.01.2024 as permitted by the Hon ble Supreme Court by its order dated 18.01.2024. The SRA having not infused the amount of Rs.150 Crores as permitted by the Hon ble Supreme Court, the SRA being not entitle for the offer given by the Appellants dated 16.08.2023, these Appeals have to be heard on merit and decided in accordance with law. 19. We have heard learned counsel for the parties and reserved judgment in the Appeals on 22.02.2024 after completion of hearing. Learned counsel for both the parties have submitted their written submissions. 20. We have heard Shri N. Ven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peration Certificate, which was granted by the DGCA on 20.05.2022 has expired and extension which was granted by DGCA by letter dated 27.07.2023 in CIRP period has also came to an end. There being no Air Operation Certificate, plan cannot be implemented. This condition precedent of having Air Operation Certificate was required much before handing over of Corporate Debtor, which was last take on the implementation of the Resolution Plan. The SRA is now seeking to modify the plan by making the condition of Air Operation Certificate as a subsequent requirement. It is further submitted that the Adjudicating Authority in its order dated 13.01.2023 on erroneous assumption held that issuance of Air Operation Certificate implies that business plan has also been approved whereas both conditions have been mentioned as two separate conditions under the Resolution Plan and therefore separately supposed to be completed. The SRA has not produced letter or correspondence where it is mentioned that business plan has been approved. Thus, said condition remains unfulfilled. Coming to slots allotment approval, Shri Venkataraman submits that impugned order dated 13.01.2023 wrongly referring to plan ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Adjudicating Authority can very well be exercised by this Tribunal and taking note of the subsequent events including failure of SRA to implement the plan, order of liquidation of the Corporate Debtor can very well be passed by this Tribunal. Shri Tushar Mehta has also referred and relied on Para 25 of the judgment of the Hon ble Supreme Court dated 18.01.2024. Shri Tushar Mehta referring to the order dated 21.10.2022 passed by this Tribunal submits that while considering the appeal against order dated 22.06.2021 this Tribunal has already held that due to non-payment of full amount of provident fund and gratuity, the plan has become non-complaint of Section 30(2) of the Code. 23. Shri Krishnendu Datta, learned senior counsel for the Respondent opposing the submissions of learned counsel for the Appellants submits that this appeal arises out of order dated 13.01.2023 where the issue was as to whether the SRA has completed the condition precedents for implementation of the plan as per Clause 7.6.1 or not. It is submitted that the SRA has completed all the condition precedents by 20.05.2022. AOC was issued by DGCA on 20.05.2022 completing the last requirement and immediately th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in reference to the offer made by the Appellant vide its Affidavit dated 16.08.2023 i.e. infusion of Rs.350 Crores. The Hon ble Supreme Court since did not permit adjustment of Rs.150 Crores PBG, hence, issued direction to the SRA to deposit said amount by 31.01.2024. The direction of the Hon ble Supreme Court to deposit Rs.150 Crores by 31.01.2024 was in reference to the offer of the Appellant dated 16.08.2023 and non-deposit of the amount of Rs.150 Crores by 31.01.2024 at best leads to denial of benefit as was offered by affidavit dated 16.08.2023 i.e. offer of the Appellant to withdraw this Appeal and appeals before Hon ble Supreme Court. The Appeals are heard on merit due to non-deposit of Rs.150 Crore by the SRA by 31.01.2024. The Hon ble Supreme Court in its judgment dated 18.01.2024 noticing the pendency of this Appeal has observed in Para 19 of the judgment that Appeals have to be heard by this Tribunal and the Hon ble Supreme Court clearly observed in Para 19 that the Supreme Court is not expressing a final view on the merits of the appeal which fall for consideration before the NCLAT. It is submitted that these appeals thus have to be heard on merits. 24. Shri Krishn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AOC is granted by DGCA only upon completion of all previous phases, which include pre-application phase, formal application phase, document evaluation phase and demonstration and inspection phase. The requirement of business plan is during phase three i.e. document evaluation phase. The submission of the Appellant that business plan has not been approved is fallacious and incorrect. Refuting the submission of the Appellant regarding slot allotment, Mr. Datta submitted that the Adjudicating Authority before approving the plan has called DGCA and MoCA officials and after hearing them passed the order approving the plan. The Adjudicating Authority has observed that all slots which were being used by Jet Airways cannot be reinstated. The Adjudicating Authority further held that considering the peculiar nature of slots allotment and its usage, the Corporate Debtor could seek slots periodically, as per requirements and the authorities concerned may consider such a request favourably. It is submitted that the Successful Resolution Applicant has approached the concerned authority for slot allotment and 48 slots were granted favourably. As per the business plan, the SRA was initially re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A referring to some one year old newspaper reports with regard to Mr. Florian Fritsch. It is submitted that Section 29A compliance was examined, investigated and fully satisfied and only after satisfying Section 29A compliance the plan was considered and approved. Filing of application before the Adjudicating Authority alleging non-compliance of Section 29A is nothing but another step of MC Lenders to create obstruction in implementation of the Resolution Plan. Filing of the said application is irrelevant, by which the intent and purpose of the Appellant is to somehow create one or other obstruction in implementation of the Resolution Plan. It is submitted that the MC Lenders cannot approbate and reprobate at same time. Shri Dutta submits that the SRA is keen to implement the plan and SRA has all intent and wherewithal to implement the plan. The SRA has already made infusion of Rs.600 Crores in the Corporate Debtor; Rs.200 + Rs.150 Crores towards first tranche payment and Rs.270 Crores towards completion of condition precedents till date to start the operation of Corporate Debtor. A lot of opportunities have been lost by the Corporate Debtor due to obstructions created by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards implementation of the Resolution Plan? Question Nos. i, ii, iii iv: 27. The above questions being inter-related are being taken together. The instant Appeals being Company Appeal (AT) Ins. No. 129-130 of 2023 have been filed against the Order dated 13th January, 2023 in I.A. No. 3398 of 2022 and 3508 of 2022 filed by Successful Resolution Applicant (SRA in short). Before we come to the above applications prayers made in there, the facts and events leading to filing of the above applications, we need to notice certain clauses of the Resolution Plan which are relevant in this context. As noted above, the Resolution Plan submitted by Respondent No. 1-SRA was approved by the Adjudicating Authority vide Order dated 22nd June, 2021. Clauses 7.6 dealt with conditions to the implementation of the Resolution Plan . Clause 7.6.1 and 2 of the Resolution Plan are as follows: 7.6. Conditions to the Implementation of the Resolution Plan 7.6.1. Conditions Precedent The obligation of the Resolution Applicant to re-commence operations as an aviation company, being the business proposed to be acquired is subject to the fulfilment of the following conditions after the approval date ( Conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that the Resolution Applicant is confident of completing all the conditions precedent within 90 days from the approval date and if need, the Resolution Applicant seeks to extend the conditions precedent fulfilment period by another term by maximum 180 days. In the Plan approval order, with regard to effective date under direction d of the order dated 22nd June, 2021, following was directed: d. The Effective Date would mean the 90th day from the Approval Date. In case the SRA /Corporate Debtor fails to secure fulfilment of all the conditions precedent as stated in clause 7.6.1 of the Resolution plan, it would be at liberty to approach this Authority for appropriate orders with respect to the extension of timeline. 29. After the Plan Approval Order dated being 22nd June, 2021, the SRA filed applications before the Adjudicating Authority seeking extension/exclusion with respect to effective date. Last of such exclusion was granted by the Adjudicating Authority vide Order dated 11th April, 2022 by which exclusion of 65 days was allowed thereby extending the effective date to 25th May, 2022. On 20th May, 2022, DGCA reissued Air Operation Certificate, Air Operation Certificate was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Clause 7.6.2 of the Resolution Plan is 20 May 2022. 31. The SRA continuously wrote to the MC Lenders i.e. the Appellant that the effective date is 20th May, 2022 and all conditions precedent as provided under clause 7.6.1 have been achieved. The MC Lenders may take further steps as per the Resolution Plan so that SRA may implement the resolution plan. The MC Lenders did not accept the claim of SRA that conditions precedent have been achieved on 20th May, 2022. Various joint lender meetings were held. On 04th June, 2022, MC Lenders shared a draft undertaking requiring the SRA to execute the undertaking. Draft undertaking contained 14 clauses with regard to which SRA was required to submit undertaking. In paragraph 99 to 100 of the Impugned Order, the Adjudicating Authority has noticed certain clauses of the draft proposed undertaking. It is useful to extract para 99 to 100 which are to the following effect: 99. The draft Proposed Undertaking, inter alia, required an unconditional affirmation and agreement from the Applicant in relation to: a. fulfilment of the CPs and procurement of all slots (and related bilateral and traffic rights) as set out in the Resolution Plan and as appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal/ regulatory requirements for the said clearance. This includes compliance with the requirements under the National Civil Aviation Policy, 2016 and as directed by the Ministry of Civil Aviation, Government of India in its letter May 10, 2022 (among others) addressed, to the Corporate Debtor in this regard, in such time and within such, period as required to adhere to the Business Plan of the Successful Resolution Applicant's Resolution Plan, with no deviation whatsoever. 6. That it shall ensure that it remains committed towards the implementation of the Resolution Plan in full and ensure availability of sufficient and requisite funds to make payments and meet its: obligations, financial or otherwise, including in relation to commencement of business and operations of the Corporate Debtor as an aviation company, in accordance with the terms as envisaged under the Resolution Plan (and as modified by this Undertaking). 12. That to the extent there is any conflict between the provisions of the Resolution Plan and this Undertaking, the contents of this Undertaking shall prevail; save and except as set out expressly in this Undertaking, - (as modified by this Unde1taking} read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t were pleaded. In the application, exclusion of period from 20th May, 2022 till the implementation application is decided by this Tribunal was sought to be excluded. Both the implementation application and exclusion application came to be heard by the Adjudicating Authority and after noticing the elaborate submissions made by the Counsel for the parties, the Adjudicating Authority returned its findings in paragraph 122 to 127. The Adjudicating Authority in para 122 has noticed the order of this Tribunal dated 21st October, 2022 in an appeal filed by JAMEWA and the Adjudicating Authority observed that this Tribunal has already held that SRA has complied all the necessary conditions specified to the satisfaction of MC. It further notices that clarification application being I.A. No. 4771 of 2022 was taken by the MC Lenders for clarification of the order which was rejected on 20th December, 2022. In paragraph 122 of the Order, following has been observed with regard to this Tribunal s order dated 21st June, 2022 : 122. We note that the Hon'ble NCLAT in its order dated 21.10.2022, in an appeal filed by JAMEWA and after hearing the parties and considering the JAMEWA's objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to fulfilment of conditions after the approval date mentioned therein. Para 7.6.2 deals with fulfilment of condition precedents and Para 7.6.4 deals with automatic withdrawal. In view of the judgment of Hon'ble Supreme Court in Ebix Singapore (Supra), as noted above, after approval by the CoC, the clause for automatic withdrawal becomes redundant and Resolution Applicant has no jurisdiction to withdraw from the Resolution Plan. The condition precedents as mentioned in Para 7.6.1 are basically condition precedents required for aviation business which are must for any company carrying on aviation business. Enumeration of condition precedent is only for purposes of noticing obligations of the Resolution Applicant to recommence the operations as an aviation company after obtaining necessary approvals. Such condition precedent cannot be said to be any hindrance in the approval of the plan by the Adjudicating Authority. We, thus, do not find any substance in the submission of the Appellant that the resolution plan ought to have rejected in view of the condition precedent contained in the resolution plan. The Resolution Applicant has also completed all necessary condition precedents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity proceeded to examine the rival submissions with regard to satisfactory compliance of conditions precedent. In para 122 itself the Adjudicating Authority held that there is no dispute so far as satisfactory compliance of conditions precedent at Sr. No. (i) and (v) i.e. whether validation of Air Operator Certificate by DGCA and MoCA and approval of demerger of ground handling business into AGSL. We may notice the above observation in para 122 which are to the following effect: However having considered the rival submissions and on perusal of record with regards to satisfactory compliance of conditions precedent (CPs) it is noted that there is no dispute so far as satisfactory compliance of CPs at serial no. (i) and (v) as per approved plan i.e.:- (i) Validation of Air Operator Certificate by Directorate General of Civil Aviation (DGCA) and Ministry of Civil Aviation (MoCA) and (v) Approval of demerger of ground handling business into AGSL. In this background we have thus considered if the remaining three CPs are duly complied with by the applicant or otherwise. 39. The Adjudicating Authority thereafter proceeded to examine other three conditions precedent on which MC Lender had r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y answered the said in para 125 in following words: 125. As regards to CP no. 4: International Traffic Right Clearance: On perusal of the plan approval order dated 22nd June, 2021, it is found that no blanket approval can be granted upfront to the SRA as it has to approach the concerned authorities for grant of such approval as per applicable laws. As already stated above, the plan approval order has reached its finality, thus, accepting the fact that all the approval issued upfront cannot be reinstated. Accordingly, this condition precedent needs to be read with plan approval order. Even otherwise there is no dispute that under the approved plan, SRA has to re-commence with operation of six air crafts. The International Traffic Rights clearance is required to be obtained in compliance with the applicable laws which stipulates that minimum twenty air crafts are required to be deployed before applying for such clearance. In view of this, we find that this condition cannot be satisfied upfront and needs to be satisfied in compliance with applicable laws i.e. after the SRA has twenty air crafts in operation which can only be achieved once the operation is re-commenced successfully. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic compliance of 7.6.1(b). The SRA refuting the above submissions contends that said condition was included in the plan since Show Cause Notice dated 23rd April, 2019 was issued by DGCA prior to CIRP wherein the AOC of Corporate Debtor was suspended by the DGCA and Corporate Debtor was required to submit its revival plan including business plan. The SRA submitted its business plan approval with DGCA and MoCA on 05th August, 2021. Learned Counsel for SRA has referred to letter dated 09th May, 2022 issued by the Government of India which has acknowledged submission of comprehensive revival plan on 05th August, 2021. The said letter further stated that operational plan submitted by Company for rectification process of air operator certificate is under examination in the DGCA. It is useful to extract the letter dated 09.05.2022 which is as follows: To M/s. Jet Airways India Limited [Kind Attn:- Capt. Priyapal Singh, Accountable Manager] Global One, 3rd Floor, 252 LBS Marg, Kurla (West), Mumbai-400070 Subject: Request for pre-application phase meeting for re-certification of Jet Airways and renewal of Air Operator Certificate-reg. Sir, I am directed to refer to DGCA s letter no. AV.1401 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as follows: (c) Slots Allotment Approval- The DGCA and MoCA shall have approved the reinstatement of all the suspended slots (including the bilateral rights and traffic rights) back to Jet Airways/Corporate Debtor. The slots (along with related bilateral rights and traffic rights) can be allotted to the Corporate Debtor gradually as per its Business Plan with immediate slots allotment approval (along with related bilateral rights and traffic rights) for sectors on which Jet 2.0 proposes to recommence operations after the Effective Date. 49. Learned Counsel for the Appellant challenging the findings of the Adjudicating Authority which has upheld the fulfilment of the above conditions submits that the Adjudicating Authority has wrongly interpreted the plan approval order dated 22nd June, 2021 to hold that this condition was substantially diluted by the approval order. It is submitted that the Adjudicating Authority while hearing the plan merely did not allow the prayer for automatic reinstatement of the slots to the Corporate Debtor as a matter of right and directed the SRA to approach the relevant authority for renewals of rights and benefits. It is submitted that the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view the purpose of Insolvency Resolution we trust that the authorities concerned including the Government of India shall take a holistic approach and provide necessary assistance to the SRA I Corporate Debtor in terms of the guidelines in allocation of slots as and when they are sought, so that the Airlines takes off the ground and possibly regain its lost glory. 50. SRA as per the business plan was initially required to secure 46 slots for the first air craft however upto the effective date, SRA has secured more than 48 slots for recommencement of Corporate Debtor s Operations, details of slots secured by the Corporate Debtor already are noted at page 987 of the Volume 4 of the Appeal which indicates that 48 slots have been acquired by SRA for recommencement of Corporate Debtor s Operation. When the necessary slots as per business plan were acquired by SRA, we fail to see that on what basis the Appellant is contending that conditions precedent as under clause 7.6.1(c) was not fulfilled. The Adjudicating Authority in the impugned order after considering all relevant facts and circumstances and considering the submission of the parties, has returned its finding in para 124 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red out of the positive bank balance of the Corporate Debtor. 54. The provisions of Resolution Plan as noted above clearly indicates that CIRP Costs includes Airport Charges. SRA is also entitled to use funds available with the Corporate Debtor as on effective date to meet any portion of CIRP costs. The submissions of the Appellant that the entire Airport Charges have to be borne by the SRA upfront cannot be accepted nor non-payment of Airport Charges by SRA as on date makes the allotment of slot unavailable to the SRA. Allotment of slot having been achieved by the SRA as noted above, non-payment of airport charges upfront by SRA cannot be said to be a reason to not accept the fulfilment of condition of slot allotment. The payment of Airport Charges has to be made as per the Resolution Plan when the implementation of plans commenced as per the Resolution Plan. We thus do not find any substance in the submission of Learned Counsel for the Appellant that allotment of slot is not completed since Airport Charges have not been paid by the SRA. 55. With regard to submission of the Appellant that old dues of Airport Charges having not been settled, the Adjudicating Authority has rightly o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated in its letter dated 10th May, 2022 to the following effect: To, Mr. Mohd. Taufeeq, Jet Airways India Ltd. ([email protected]) Subject: Re-Letter Dt. 27.01.2022 FOR Clarification for grant of International Traffic Clearance to Jet Airways India Ltd. Sir, I am directed to refer to you letter under reference and to say that in terms of Clause 8(b) of the National Civil Aviation Policy, 2016 an airline can commence international operations provided that it deploys 20 aircraft or 20% of total capacity (in term of average number of seats on all departures put together), whichever is higher for domestic operations. For this purpose, the published schedule of airlines will be the basis for monitoring, assuming that one aircraft would have six departures per day. Further, Para 2 of AIC 10/2022 on the Guidelines for Grant of Permission to Indian Air Transport Undertakings for Operation of Scheduled International Air Transport Services issued by the Directorate General of Civil Aviation dated 19.04.2022 prescribing the Eligibility Criteria may also be referred. The Application of the Jet Airways, if it has a valid AOC and fulfils the above criteria, will be examined for intern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, Air Operation Certificate dated 20th May, 2023 was in operation hence no infirmity can be found in the finding of the Adjudicating Authority that condition 7.6.1.(a) is fulfilled since the Air Operation Certificate was very much in operation. 61. Learned Counsel for the SRA has placed reliance on the Judgment of the Supreme Court in 2022 2 SCC 256, Om Prakash Gupta Vs. Ranbir B Goyal where Hon ble Supreme Court laid down that the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. In para 11 of the Judgment, following was held: 11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring pendency of these Appeals, MC Lenders did not take any steps nor discharge their part of obligation under the resolution plan hence it cannot be said that it was due to lapse of SRA that Air Operation Certificate could not be operationalised. SRA was always ready to operationalise its air operations but was not permitted by the Appellant. We thus do not accept the submission of the Appellant that due to lapse of air operation certificate during pendency of these Appeals before this Tribunal, it can be held that conditions precedent as required under 7.6.1.(a) was not fulfilled. We thus reject the submission of the Appellant that condition as required by 7.6.1(a) was not fulfilled. 63. In view of the foregoing discussions and conclusions, we are of the view that there is no infirmity in the order dated 13th January, 2023 passed by the Adjudicating Authority holding that conditions precedent for commencement of the air operation by the SRA were fulfilled. 64. We thus do not find any infirmity in the order dated 13th January, 2023 warranting any interference in these Appeals. Question Nos. v, vi and vii:- 65. The above questions are interrelated, hence are being considered toget ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclusions as well as on the issue regarding the compliance of Conditions Precedent, in case the aforesaid steps are taken by SRA without any further delay. Failing to comply with the conditions mentioned in Para 8(a) to (c) above, the Corporate Debtor should be directed to go into liquidation. 68. The SRA after affidavit dated 16.08.2023 undertook a stand that MC Lenders views are constructive and are positive steps towards the revival of the Corporate Debtor. IA Nos.3801-3802 of 2023 was filed by the SRA, where the Applicants made following prayers: (a) Direct the MC Lenders to adjust or otherwise apportion the PBG of INR 150 Crores as per the terms of the Resolution Plan towards the part payment of the first tranche under the Resolution Plan; (b) Allow the Successful RA to infuse INR 100 Crores as share application money in the designated bank account of the Corporate Debtor on or by 31 August 2023; ( c) Allow the Successful RA to infuse the remaining sum of INR 100 Crores, as share application money in the designated bank account of the Corporate Debtor on or before 30 September 2023; (d) Pass necessary, specific and time bound directions to the MC Lenders, the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prayers (a), (b) and (c) were concerned. The prayer (a) made in the Application that SRA be permitted to adjust the security PBG of INR 150 crores towards the payment of INR 350 crores was accepted. Prayer (b) and Prayer (c), which were for payment of INR 100 crores by 31.08.2023 and INR 100 crores by 30.09.2023 were also allowed. Operative portion of the order dated 28.08.2023 is in paragraph 31, which is as follows: 31. In view of the fore-going discussion, we partly allow I.A. No. 3801-3802 of 2023 in so far as prayer (a), (b) and (c) are concerned. Let I.A. No. 3801- 3802 of 2023 be listed on 04th October, 2023 for further consideration. 70. Civil Appeal Nos.6427 and 6428 of 2023 were filed by the Appellant, challenging the order dated 28.08.2023 passed by this Tribunal, which Appeal has been decided by the Hon ble Supreme Court vide its order dated 18.01.2024 along with Civil Appeal Nos.4131-4134 of 2023 and 3736-3737 of 2023. The Hon ble Supreme Court vide its order dated 18.01.2024 held that order of this Tribunal dated 28.08.2023 allowing prayer (a) of the SRA, permitting adjustment of PBG of INR 150 crores was not in accordance with the affidavit of the Lenders dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LT); (ii) The SRA must undertake to scrupulously follow the other terms and conditions of the Resolution Plan; and (iii) The SRA must comply with the liabilities in regard to the payment to the employees in terms of the order of the NCLAT dated 21 October 2022 which has been upheld by this Court on 30 January 2023. 72. The Hon ble Supreme Court in paragraph-21 took the view that order of this Tribunal allowing plea of SRA for adjustment and consequential release of the PBG at the interlocutory stage, is not in accordance with the tenor of paragraph-8 of the affidavit, which was filed by the SRA. The said observations have been clearly made in paragraph 21 of the judgment, is as follows: 21 Conditional on compliance with the three conditions set out above, SBI stated that it would be willing to withdraw both the company appeals which were pending before the NCLAT as well as the Civil Appeals which were pending before this Court, details of which were set out in the affidavit. The offer which was made by SBI on behalf of the lenders had to be complied with as it stood in the event that the SRA sought the benefit of the offer. According to the SRA, the PBG was liable to be released on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the permission which was granted to the SRA to adjust the last tranche of Rs 150 crores against the PBG shall stand substituted by the above directions. 74. From the perusal of the judgment of the Hon ble Supreme Court as noticed above, it is clear that direction issued by Hon ble Supreme Court to deposit the amount of INR 150 crores peremptorily by on or before 31.01.2024 was in reference to the affidavit dated 16.08.2023 by which the Appellant asked for infusion of INR 350 crores. Paragraph 26 of the judgment, contains a direction of the Hon ble Supreme Court, by which order dated 28.08.2023 passed by this Tribunal has been modified in part. The Hon ble Supreme Court clearly held the permission which was granted to the SRA to adjust the last tranche of Rs.150 crores against the PBG shall stand substituted by the above direction . Meaning thereby, the order of this Tribunal to adjust the PBG of INR 150 crores was substituted by direction of Hon ble Supreme Court that the said amount peremptorily be deposited on or before 31.01.2024 by SRA. 75. By order of the Hon ble Supreme Court dated 18.01.2024, it is made clear that Hon ble Supreme Court modified only part of the order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2023 order holding that the SRA is compliant with the conditions precedent is pending before the NCLAT. Hence, the observations in the present judgment are confined to the arrangement which must operate during the pendency of the appeal without this Court expressing a final view on the merits of the appeal, which will fall for consideration before the NCLAT. 78. Paragraph 19 of the judgment of the Hon ble Supreme Court, makes it clear that the Hon ble Supreme Court has not expressed any view on the merits of the Appeal, which was yet to be considered by this Tribunal and the question as to whether the SRA was compliant with the conditions precedent has to be decided in this Appeal. We having held that directions of the Hon ble Supreme Court vide order dated 18.01.2024 are confined to the offer, which was submitted by the Appellant by affidavit dated 16.08.2023, non-fulfillment of the conditions by SRA by non-deposit of INR 150 crores by 31.01.2024 is that the SRA shall become disentitled to receive the offer given by the Appellant by affidavit that they will withdraw the Appeal in this Tribunal and the Hon ble Supreme Court. The result is that the Appeals pending in this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by Appellant in affidavit dated 16.08.2023 Question No. iv : The Successful Resolution Applicant having not been able to infuse funds by 31.01.2024 as directed by Hon ble Supreme Court vide its judgment dated 18.01.2024, it cannot be held that Resolution Plan has failed and cannot be implemented by the SRA. Question No. vii : No grounds have been made out to direct the liquidation of Corporate Debtor under Section 33, sub-section (3) in these Appeals. Way Forward 82. This brings us now to Question No. viii delineated above. In the foregoing discussions, we have held that Adjudicating Authority has correctly by its impugned order dated 13.01.2023 held that condition precedents were achieved on 20.05.2022 by SRA. These Appeals has been filed by Lenders, challenging the aforesaid order dated 13.01.2023. We having upheld the order dated 13.01.2023, whether the Appeals have to be closed with the aforesaid order or there is requirement of consideration of any subsequent event or facts is a question, which has been addressed before us, which needs to be answered. 83. As observed above, the right of parties with regard to lis raised in a proceeding has to be decided on the date of insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against. 86. As noted above, the lis between the parties, i.e. Lenders and the SRA being the implementation of the Resolution Plan, different steps and compliances of various clauses of Resolution Plan, time elapsed during litigation between the parties and time lapsed during the proceeding are relevant to be considered to find out the way forward. 87. The proposition laid down by the Hon ble Supreme Court in Pasupuleti Venkateswarlu case was again reiterated by the Hon ble Supreme Court in Om Prakash Gupta vs. Ranbir B. Goyal (2002) 2 SCC 256. In paragraph 11 of the judgment, following has been laid down by Hon ble Supreme Court: 11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtor's assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends. 89. To the same effect is the subsequent judgment of the Hon ble Supreme Court in (2020) 15 SCC 1 Babulal Vardharji Gurjar vs. Veer Gurjar Aluminium Industries Pvt. Ltd. Anr., where the Hon ble Supreme Court in paragraph 21 laid down following : 21. The expositions abovementioned make it clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Plan was approved and order approving the Resolution Plan came to be challenged before the NCLAT, which Appeal was dismissed on 04.03.2021. After dismissal of the Appeal, NCLT directed the Monitoring Agency to start taking steps for implementation of the Resolution Plan. The submission raised on behalf of one of the Financial Creditor was that Corporate Debtor should be sent to liquidation, since the payment as per Plan has not been made to the Financial Creditor. The Adjudicating Authority had rejected the submission of the Financial Creditor that Corporate Debtor had to be sent to liquidation. The Adjudicating Authority further granted five days time to the SRA to transfer the amount in the Corporate Debtor s account, which order of the Adjudicating Authority came to be challenged by the Financial Creditor in the Appeal. The Appeal was dismissed by this Tribunal by upholding the order of the Adjudicating Authority. This Tribunal observed that even if certain delay has taken place in implementation of the Resolution Plan, no case has been made out to interfere with the order of the Adjudicating Authority. In paragraphs 21 to 24, following was held: 21. In the above paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be interfered with in exercise of our Appellate Jurisdiction. We are thus of the view that there is no merit in the Appeal, the Appeal is dismissed. 91. The learned Counsel for the Appellant has also relied on the judgment of the Hon ble Supreme Court dated 18.01.2024. 92. We, thus, are of clear opinion that subsequent events specially, the time elapsed during pendency of the litigation has to be taken note of and appropriate remedial actions should be taken as noted above. The object of the IBC is to revive the Corporate Debtor. A Resolution Plan, which has been approved by the Adjudicating Authority and have been affirmed upto Hon ble Supreme Court, which is binding on all, including the Lenders and SRA, every steps have to be taken by all concerned to ensure that Plan is implemented. 93. The implementation of Plan and revival of the business of the Corporate Debtor does not only generate revenue for making of the payments as contemplated in Resolution Plan, but is important for making payments to workers and employees. The workers and employees are waiting for their payments of provident fund, gratuity and other dues as per the Resolution Plan for last more than three years. Non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LOI from the CoC X 3. Unconditional acceptance of the LOI X + 3 4. Issuance of Performance Security Bank Guarantee X + 7 5. Finalization of the members of the Monitoring Committee Between X and Approval Date 6. Approval Date Y 7. Monitoring Committee to take control as per Clause 7.8.2 Y 8. Fulfillment of Conditions Precedent as per Clause 7.6.1 After 9. Filing of the certified copy of the Order of Approval received from Adjudicating Authority sanctioning the Resolution Plan with the relevant Government Authorities/ Stock Exchange/ Departments. Y + 10 10. Effective Date Z 11. Infusion of Rs.350 Crores in the Corporate Debtor Z + 150 12. Setting up the Contingency Fund Z + 170 13. Cancellation of shares (excluding Public Shares) as per Clause 7.4.1 (c) Z + 170 14. Reconstitution of Share Capital as per Clause 7.4.2 above. Z + 170 15. Steps towards issuance of equity shares as per Clause 7.4.3 above. Z + 170 16. Payment of CIRP Costs as per Clause 6.4.1 Z + 170 17. Payment to the Operational Creditors (workmen and Employees including Authorized Representatives of Workmen and Employees) as per Clause 6.4.2. Z + 175 18. Payment to all the Operational Creditor (other than Workmen and Em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Tribunal on 26.05.2023, the payment of first tranche amount by SRA was to be completed by 31.08.2023. On an Application filed by SRA, time for further payment of INR 100 crores was extended till 30.09.2023. As noted above, against the order dated 03.03.2023, 26.05.2023 and 28.08.2023 passed by this Tribunal, MC Lenders, i.e., Appellant filed Appeals in Hon ble Supreme Court and have been challenging the orders passed by this Tribunal as well as the claim of the SRA that they have completed all condition precedents on 20.05.2022. Even during the final hearing in these Appeals, which took place subsequent to the Hon ble Supreme Court order dated 18.01.2024, Appellants have been contending that SRA has not achieved the condition precedents as per Clause 7.6.1. We having upheld the order of Adjudicating Authority dated 13.01.2023 that SRA completed condition precedents, the SRA is entitled for exclusion of time till the date of this judgment. Time having been already excluded till 30.09.2023, in continuation of said exclusion, we further direct exclusion of time till the date of this judgment. Complementation of documentation of security of Dubai property. 99. We have already notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady and still ready to bear all expenses for charge creation. 103. We notice that in the Resolution Plan itself Clause 6.4.4 provided that Security will be created at the cost of Resolution Applicant . Thus, it is Resolution Applicant, who is to bear all costs for charge creation. The mortgage/ charge over Dubai properties is essential condition of the Plan for proceeding further. We are of the view that ends of justice will be met by issuing appropriate direction to the Lenders to take all steps for creation of charge and direction to the SRA to bear all expenses. We direct that the said process of creation of charge on Dubai Property No.1, Dubai Property No.2 and Dubai Property No.3 be completed within a period of 30 days from today. Completion of payment of INR 350 crores, which is first tranche payment by the SRA. 104. As noted above, the SRA has already paid an amount of INR 100 crores by 31.08.2023 and INR 100 crores by 30.09.2023. INR 150 crores was not infused by the SRA as per the offer given by affidavit dated 16.08.2023 by the Appellant and Hon ble Supreme Court has already held vide its order dated 18.01.2024 that SRA having not infused INR 150 crores, it is not entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d creation of security, the shares have to be issued in the name of SRA. The Share Re-constitution has also to be completed as per the Resolution Plan by all concerned. First Tranche Payment to Creditors. 109. After infusion of INR 350 crores by the SRA as noted above, the Resolution Plan contemplates first tranche payment to creditors, which disbursement be completed by Chairman of the Monitoring Committee Mr. Ashish Chhawchharia, within 30 days after creation of security on SRA properties by MC Lenders. The first tranche payment shall include the payment to workmen and employees as provided in the Resolution Plan as well as to Financial Creditors. The payment of CIRP cost as per Resolution Plan has also to be paid. 110. The learned Counsel for the SRA has submitted that SRA shall also be making payment of provident fund of INR 12 crores payable to workmen and employees as per judgment and order of this Tribunal dated 21.10.2022 along with the payments of all dues of the workmen payable under the Resolution Plan. The SRA shall make payment of INR 12 crores as undertaken, in addition to the amount, which is required to be paid to the workmen and employees under the Resolution Plan. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and workmen, who were demerged into AGSL shall not be there, since demerger has not been treated as termination of their services. (c) The employees are also entitled for the payment of their full provident fund, unpaid up to the date of insolvency commencement date. It is made clear that full payment of provident fund would be of that unpaid part of provident fund, which has not been deposited by the Corporate Debtor in the EPFO. (d) Employees shall also be entitled for the gratuity, which fell due up to insolvency commencement date. (e) The rest of the prayers of the workmen and employees are denied. (f) The Chairman of the Monitoring Committee, erstwhile Resolution Professional is directed to compute the payments to be made to workmen and employees within one month from today and communicate the same to the Successful Resolution Applicant to take steps for payment. 113. When we look into the above directions, it is clear that the amount to be paid by SRA towards provident fund and gratuity was the amount to be paid after adjustment of the amount received under the Plan. The above clearly indicate that the amount is to be received by the workmen and employees under the Plan fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... implementation of the Plan, rather Lender have filed Appeals in this Tribunal challenging the order dated 13.01.2023. Air Operation Certificate was also extended and extended period also came to an end by September 2023 due to the litigations pending between the parties as noted above. We, thus, are of the view that SRA has to make an appropriate Application for re-issue of Air Operation Certificate, as was earlier re-issued by the Govt. of India, Office of the Director General of Civil Aviation. The SRA to immediately make an appropriate Application for re-issue of Air Operation Certificate and complete all necessary formalities, so that before the closing date, Air Operation Certificate may be re-issued. The Govt. of India, Office of Director General of Civil Aviation and Ministry of Civil Aviation may take necessary steps regarding the Air Operation Certificate in accordance with law. There being already sufficient delay, having caused in the implementation of the Resolution Plan and Air Operation Certificate issued, could not be used by SRA, due to the road blocks created in the implementation of the Resolution Plan, we are of the view that the Director General of Civil Aviati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion applicant of such plan, after its approval by the Adjudicating Authority, fails to implement or contributes to the failure of implementation of that plan in accordance with the terms of the plan and its implementation schedule. Explanation I. For the purposes of this sub-regulation, performance security shall mean security of such nature, value, duration and source, as may be specified in the request for resolution plans with the approval of the committee, having regard to the nature of resolution plan and business of the corporate debtor. Explanation II. 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. 121. The Resolution Plan provides that performance security be given by SRA for implementation of the Resolution Plan. As noted above, PBG of INR 150 crores was already handed over by SRA to the Lenders. The BKC property has also been with the Lenders, whose security value have been noted in the Resolution Plan as INR 246 crores. We fail to see the reason for Lenders not proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has been brought before us by learned Counsel for both the parties. It is submitted by learned Counsel for the SRA that when the payment of INR 100 crores was to be made by SRA by 30.09.2023, the Lenders filed an Application before the Adjudicating Authority on 25.09.2023, raising certain concern with regard to fulfilment of Section 29A with regard to Florian Fritsch on the basis of one year old newspaper report. The act of Lenders, filing an Application on 25.09.2023 before the Adjudicating Authority indicate their another attempt to somehow create a block in the process of implementation of the Resolution Plan. 126. The implementation of Resolution Plan is a collaborative process, which require positive action from all the parties, including the MC Lenders. The implementation of the Resolution Plan not only revives the Corporate Debtor, but it brings along with revival, new employment, generation of revenues etc. By non-implementation of the Plan, direct sufferers are the workers and employees, who have not received the payments. It is true that Lenders are entitled to take steps for protection of their amount, but that is not the only object of the IBC. The Lenders to prote ..... X X X X Extracts X X X X X X X X Extracts X X X X
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