Tribunal restrains respondent from invoking Bank Guarantee; PBG not under IBC moratorium.

The Tribunal ruled in favor of the applicant, restraining respondent No. 1 from invoking the Bank Guarantee (BG). It found that the Performance Bank Guarantee (PBG) provided did not fall under the moratorium of the Insolvency and Bankruptcy Code (IBC) and that respondent No. 1's invocation of the BG was unjustified as the project was completed and operational, with no breach by the applicant. The Tribunal emphasized the need to consider case-specific facts and ordered respondent No. 1 to crystallize pending works in financial terms and file a claim with the Resolution Professional to preserve the Corporate Debtor's assets.

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Issues Involved:
1. Whether the security provided by the applicant falls under section 14(3) of the Insolvency and Bankruptcy Code (IBC).
2. Whether the security offered falls under section 3(31) of the IBC.
3. Whether respondent No. 1 is entitled to invoke the Bank Guarantee (BG) in the absence of a similar demand by Nepal Electricity Authority (NEA).
4. Whether respondent No. 1 has invoked the BG in terms of the specified clauses in the BG.

Issue-wise Detailed Analysis:

1. Whether the security provided by the applicant falls under section 14(3) of the IBC:
The applicant contended that the moratorium under section 14(1)(c) of the IBC prevents the invocation of the BG by respondent No. 1. The respondent argued that a Performance Bank Guarantee (PBG) is excluded from the definition of 'security interest' as per section 3(31) of the IBC, and hence, the moratorium does not apply. The Tribunal observed that while PBGs are not included under section 14, each case must be decided based on its facts. The Tribunal noted that NEA had issued a Completion Certificate, and the project was in commercial operation, indicating no immediate need for invoking the BG by respondent No. 1.

2. Whether the security offered falls under section 3(31) of the IBC:
The respondent argued that the PBG provided by the applicant is not covered under section 14(1)(c) of the IBC, citing the proviso to section 3(31) which excludes performance guarantees from the definition of 'security interest'. The Tribunal acknowledged this but emphasized the need to consider the specific facts of the case. Given that NEA had not invoked the BG and the project was operational, the Tribunal found the invocation by respondent No. 1 unjustified.

3. Whether respondent No. 1 is entitled to invoke the BG in the absence of a similar demand by NEA:
The applicant argued that since NEA had not invoked the BG, respondent No. 1 had no grounds to do so. The Tribunal agreed, noting that NEA’s Completion Certificate and the commercial operation of the project indicated no breach by the applicant. The Tribunal concluded that respondent No. 1's invocation of the BG was not justified, especially when the principal employer, NEA, had not made a similar demand.

4. Whether respondent No. 1 has invoked the BG in terms of the specified clauses in the BG:
The applicant contended that the BG required a written statement stating that the applicant was in breach of its obligations under the contract, which respondent No. 1 failed to provide. The Tribunal observed that respondent No. 1 did not demonstrate any breach by the applicant and noted that the BG was invoked without following the specified terms. The Tribunal found that the invocation was not in accordance with the BG terms and thus, not justified.

Observations:
The Tribunal noted that the project was completed and operational, with NEA issuing a Completion Certificate. The Tribunal emphasized that PBGs are not covered under the moratorium, but each case must be considered on its merits. The Tribunal cited relevant case law, including the Supreme Court's decision in M/s. Gangotri Enterprises Ltd. Vs. Union of India, which highlighted the importance of case-specific facts. The Tribunal concluded that respondent No. 1's invocation of the BG was unjustified, as NEA had not invoked the BG and the project was operational.

Order:
The Tribunal allowed the application, restraining respondent No. 1 from invoking the BG. It directed respondent No. 1 to crystallize any pending works in financial terms and file a claim with the Resolution Professional. The Tribunal emphasized that invoking the BG would diminish the value of the Corporate Debtor's assets and defeat the objectives of the IBC.

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