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TaxTMI 
TaxTMI 
2022 (11) TMI 699
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....1 of the Insolvency & Bankruptcy Code, 2016 (hereinafter called as 'IBC') assailing the order dated 20.04.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench) in I.A. No. 534 of 2022 in I.A. No. 607 of 2021 in CP No. (IB) 1222/(MB) 2019 (hereinafter called the 'Impugned Order'). 2. In brief, the facts of the case are that the Corporate Insolvency Resolution Process (in short 'CIRP') was initiated on an application filed under Section 7 of the IBC filed by the Bank of Maharashtra (in short 'BOM'), acting for and behalf of itself, State Bank of India and Vijaya Bank (which is now Bank of Baroda). Subsequently a Resolution Plan for insolvency resolution of the Corporate Debtor Fabtech Projects and Engineers Ltd. was submitted jointly by Manjeet Cotton Pvt. Ltd. and Parason Machinery (India) Pvt. Ltd. (in short 'Successful Resolution Applicant') which was approved by the Committee of Creditors (in short 'CoC') by a voting share of 85.18% and the Resolution Plan was approved by the Adjudicating Authority vide its order dated 16.11.2021. 3. It is the Appellant's case that under the terms of the Resolution Plan, the Successful Resolution Applicant-....
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....RA would pay 52.50% (totalling to Rs. 29.38 crores) in relation to the bank guarantees provided by the banks once they are invoked by the respective banks. She has further argued that the Resolution Plan was approved by the CoC with a majority of 85.18% voting share, and thereafter approved by the Adjudicating Authority on 16.11.2021. She has further claimed that the said bank guarantees were invoked by the beneficiaries Indian Oil Corporation and Oil India Ltd. vide letters dated 18.10.2021 addressed to the Bank of Baroda and Bank of Maharashtra asking for payment of proceeds of the bank guarantee of Rs. 7 crores and Rs. 6.86 crores to the BOB and BOM. Another bank guarantee was invoked through another letter dated 18.10.2021 addressed to the Bank of Maharashtra which was for an amount of Rs. 5.65 crores. She has claimed that these invocations of the bank guarantees took place before the Resolution Plan was approved by the Adjudicating Authority on 16.11.2021 but after the Resolution Plan had been approved by the Committee of Creditors. And hence the SRA which has committed itself to pay the invocation amounts to the extent of 52.20% in the resolution plan should honour its commit....
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....d party which has the right to invoke the bank guarantee at any point of time and claim money under the said bank guarantees from the banks. She has referred to the judgment of Hon'ble Supreme Court in the matter of Phoenix ARC Pvt. Ltd. v. Anush Finleash & Construction Pvt. Ltd. (IB) 1705 (PB)/ 2018 and Pragdas Mathuradas v. Jeewanlal (1929), Limited (1948) SCC OnLine PC 46 in this regard to claim that these judgments are support of her contention. 13. She has further claimed that the Adjudicating Authority while disallowing the claim of the appellant bank has relied on two Supreme Court's Judgements, namely, Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. (2021 SCC OnLine SC 313) and Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta & Ors. (2020 (8) SCC 531). In this connection she has claimed that in both these judgements, the Hon'ble Supreme Court was considering the issue of new and surprise claim post the approval of the Resolution Plan whereas in the present case it is clear that the claim against the invoked bank guarantees were not surprise claims but the CoC and the financial creditors as well as the SRA were qui....
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.... funds and how these funds may be utilised, which is to only show that the Successful Resolution Applicants possesses sufficient funds for an effective resolution of the corporate debtor. 16. The Learned Senior Counsel for the Respondents No. 1 & 2 has referred to Hon'ble Supreme Court's Judgment in the matter of Kanataru Rajeevaru v. Indian Young Lawyers Association (through its General Secretary Bhakti Pasrua and Ors.) [2020 9 SCC 121] wherein it is held that "when a statute is carefully punctuated and there is doubt about its meaning, weight should undoubtedly be given to the punctuation" to emphasise that the specific condition regarding "Transfer Date" in clause 3.7(2)(c) of the Resolution Plan was carefully inserted based on discussions in the Committee of Creditors and thus the argument of Appellant is not acceptable in view of the actual Para 3.7(2)(c) and its formulation. He has clarified that the Respondents never intended to make payments towards Bank Guarantees invoked prior to the "Transfer Date". He has also submitted that the SRA have made due payments to State Bank of India for a Bank Guarantee that was invoked subsequent to the "Transfer Date". 17. In support....
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.... Resolution Professional hand over the management/ control of the Corporate Debtor to the Board constituted by Resolution Applicants within 15 days from Closing Date. 21. A perusal of Para 3.5(a) and (b) makes it clear that these paras only show the "Source of Funds" and "Summary of Utilisation of Funds" by the SRA. It is noteworthy that the two asterisks (**) that appear below the table of "Summary of Utilisation of Funds" states that the utilisation of funds will be in the manner as provided under this Resolution Plan. Further in the note that in the footnote with $ sign it is stated that this amount also includes the amount equivalent to 52.50% of the invoked bank guarantees issued by the secured financial creditors pertaining to large projects, to be paid to such respective Secured Financial Creditors whose bank guarantees are invoked. 22. It becomes clear from perusal of the definitions of "Closing Date" and "Transfer Date" that the management and control of the corporate debtor will devolve to the board constituted by the Resolution Applicant on the "Transfer Date" which will be within 15 days of the "Closing Date". 23. It becomes lucidly clear on a close reading of ....