JUDGMENT :

Sudhansu Jyoti Mukhopadhaya, J.

In the ‘Corporate Insolvency Resolution Process’ initiated against ‘M/s. Adhunik Metalliks Ltd.’-(‘Corporate Debtor’), the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata, by impugned order dated 17th July, 2018 approved the ‘Resolution Plan’ under Section 31 (1) of the Insolvency and Bankruptcy Code, 2016 (‘I&B Code” for short) submitted by ‘Liberty House Group Pte. Ltd.’ (“Liberty House Group” for short), which was approved by the ‘Committee of Creditors’ with 99.94% voting shares.

2. By the same very impugned order, the claim of ‘MSTC Limited’-(‘Operational Creditor’), a Public Sector Undertaking under the Govt. of India, to treat the additional expenses incurred by it as Resolution Cost, and thereby to pay it, has been rejected.

3. The fact is that the ‘Liberty House Group’, whose ‘Resolution Plan’ was approved on 17th July, 2018, failed to pay the upfront amount within 57 days from the date of the approval of the ‘Resolution plan’ in terms of plan. On such failure, the ‘Committee of Creditors’ alleging noncompliance of relevant terms in the ‘approved Resolution Plan’ filed an application before the Adjudicating Authority, Kolkata Bench. The ‘Liberty House Group’ also moved an application seeking directions to implement the ‘Resolution Plan’ by the Long Stop Debt as defined in the ‘Resolution Plan’. The ‘Liberty House Group’ also requested to issue ad interim directions to the ‘Committee of Creditors’ not to pursue the application for liquidation.

4. The Adjudicating Authority having heard the parties by impugned order dated 12th December, 2018 refused to grant interim relief to the ‘Liberty House Group’ and asked as to why order of liquidation in terms of sub-section (3) of Section 33 of the ‘I&B Code’ be not passed.

5. The typographical error was corrected by impugned order dated 3rd January, 2019, allowing the ‘Liberty House Group’ to file reply affidavit.

6. The order dated 12th December, 2018 rejecting the prayer of ‘Liberty House Group’ to grant interim relief read with order dated 3rd January, 2019 allowing the ‘Liberty House Group’ to file reply affidavit have been challenged by ‘Liberty Group House’.

Case of ‘Liberty Group House’

7. Learned counsel appearing on behalf of the ‘Liberty House Group’ submitted that the ‘Resolution Plan’ not only contemplated corresponding obligations of the parties who were required to take necessary steps for implementation of the ‘Resolution Plan’, it also contemplated certain material assumptions on the basis of which the Appellant prepared and structured the ‘Resolution Plan’.

8. It was submitted that the ‘Liberty House Group’ made best efforts to perform its part of the obligations for implementation of ‘Resolution Plan’ and is continuing to do so, however, the implementation of the ‘Resolution Plan’ suffered road block due to multiple factors which were beyond the control of the Appellant.

9. According to ‘Liberty House Group’, the claim of ‘MSTC Limited’ as shown in Clause 6.8.2 of the ‘Resolution Plan’ is a critical assumption based on which the offer of upfront payment has been made. The ‘Committee of Creditors’ and the Adjudicating Authority approved such plan dated 17th July, 2018.

10. Clause 6.8.2 of the ‘Resolution Plan’ reads as follows:

“6.8.2 the Liquidation Value payable to MSTC is NIL. Based on Information provided, MSTC has been paid the entire dues that were incurred during the CIRP period in full. Further, based on the information provided, we understand that INR 56.72 crores was paid during the CIRP period to MSTC in order to ensure continued supply of goods (which was necessary to continue the going concern nature of the business of the corporate debtor), which payments have been approved by the CoC. In the circumstances, since the Operational Creditors under the Code are entitled to Liquidation Value and in this case the Liquidation Value payable to the Operational Creditors is NIL, MSTC as an Operat