2021 (7) TMI 559

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..... Allow encashment of Performance Guarantee of Rs. 2 Crores and utilise the same for meeting CIRP cost; 2. Application bearing IA No. 29 of 2021 is filed by the Successful Resolution Applicant seeking following reliefs:- a) Direct the Respondent No. 1 to handover the management and control of all the assets, documents, records in physical/digital form pertaining to the Corporate Debtor to the Applicant, including but not limited to furnishing: (i) Bank Account details of the Corporate Debtor, including the usernames and passwords pertaining to internet banking facilities. (ii) MCA-RoC filings usernames and passwords (iii) The GST Username and Password (iv) Income Tax Username and Password (v) GST monthly and annual returns, including workings (vi) PF, ESI login credentials (vii) TDS login credentials (viii) PF monthly payment working and dues status till date (ix) Audited Financial Statements for the last four financial years (x) Resolutions passed by the Corporate Debtor in the last 3 years and other filings made before the RoC (xi) Books of Accounts, Tally Data or any ot....

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....1 passed in I.A. No. 29 of 2021 in C.P. (IB) No. 302/7/HDB/2018; and 4. Brief facts as stated by the applicant (erstwhile RP) in IA No. 105/2021 are as under:- a. That subsequent to the approval of Resolution plan, on 04.02.2021, Resolution Applicant informed that they were ready with the demand drafts and requested for handing over of the unit. That the Resolution Applicant raised concerns regarding release of the payment and has filed IA No. 29/2021. b. That the RP replied to the mail of the RA on 04.02.2021, inter-alia stating that he will hand over the unit once the down payment is received and pass on the control to the monitoring committee to supervise the implementation as per plan. c. It is further alleged that on 12.05.2021, this Adjudicating Authority directed the RA to handover the DDs to the RP within three days. That despite the direction of this Adjudicating Authority, RA failed to comply and the RP was forced to send a mail dated 13.02.2021, ordering forfeiture of the Performance Guarantee. d. That in-spite of almost two weeks having passed from the due date, the Resolution Applicant except intermittently sending mails, has mise....

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.... the erstwhile Resolution Professional over and above the provisioning made in the Resolution Plan can only be considered by the Monitoring Committee and the erstwhile Resolution Professional cannot simply claim such amounts as a matter of right. e. That the Respondent No. 1 has addressed emails dated 22.01.2021 and 28.01.2021 to erstwhile RP seeking bank account details of Corporate Debtor to transfer upfront payment which is due to be paid on 06.02.2021, however, the erstwhile RP did not provide the same; f. That as neither the information on handover of documents of Corporate Debtor nor the concerned bank account details were forthcoming from the erstwhile RP, the member representing Resolution Applicant in the MC issued a notice convening a meeting of MC on 29.01.2021 to discuss various issues including the modalities for making the down payment. However, the erstwhile RP refused to attend the meeting. Therefore, the other two members of MC being the representatives of Resolution Applicant and Financial Creditors/erstwhile CoC were constrained to continue with the 1st meeting of MC. g. The MC in the said meeting dated 29.01.2021 has acknowledged the d....

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....mmittee having the erstwhile RP, a Representative of the Financial Creditors and a representative of the Resolution Applicant as it's Members for smooth implementation of the Plan. 10. Subsequently, after hearing representations from both sides, this Adjudicating Authority by its order dated 12.05.2021, has issued specific directions to the RA to ensure payment and to the erstwhile RP to receive the down payment amount and ensure handing over of the unit along with necessary documents to the RA within 3 days. 11. It is also noted that the Resolution Applicant had taken out Bankers Cheques for Rs. 40 crores in favour of the Corporate Debtor as early as on 02.02.2021 and was ready to handover subject to receipt of important documents including bank details of Corporate Debtor for depositing the down payment. They had already deposited a sum of Rs. 2 crore as Performance Security at the time of submission of the Plan. Therefore, they had already shell out the funds from their side for making the down payment in February 2021 itself. They also sought our permission to revalidate the Bankers Cheque during the month of May, which was allowed vide our order 07.05.2021. In these ....

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....solution Plan is binding on them U/s. 31 of the Code, but to initiate criminal proceedings under these provisions, mens rea is to be established as would be immediately discernible from the phrase "knowingly and willfully contravenes .... or abets such contravention" used in sub-section 74(3) above. We have already noted above that the RA had taken out a sum of over Rs. 40cr from their account for making DD/Bankers Cheque of equal amount for making down payment as per the Resolution Plan way back on 02.02.2021 itself, which has been allowed to be revalidated on 07.05.2021 by this Bench. The RA's conduct, thus appears bona fide and they cannot be held liable for breach of the Resolution Plan so as to warrant punishment u/s. 74(3) of the Code. We, therefore, answer the first question framed above in the negative. 16. Secondly, the IBC being a complete Code in itself has also incorporated a specific section for trial of offences under the Code by a Special Court. S. 236 of the Code reads as under: "Section 236: Trial of offences by Special Court. *236. (1) Notwithstanding anything in the Code of Criminal Procedure, 1973, offences under this Code shall be tried....