# In the matter of M/s. Cimco Projects Ltd. & Ors. 
Vs.
Mr. Anup Kumar (Resolution Professional) M/s.
Shivkala Developers Pvt. Ltd. & Anr. Company Appeal (AT) (Insolvency) No. 128 of 2022

> NCLAT judgment dated 2022-08-01. Citation: TCN-2022-NCLAT-00314. The case involves an appeal against an order dated 24.11.2021 passed by the Adjudicating…

- **Court:** NCLAT
- **Order date:** 1 Aug 2022
- **Citation:** TCN-2022-NCLAT-00314
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/ms-cimco-projects-ltd-ors-vs-mr-anup-kumar-resolution-professional-ms-shivkala-d-166cbbe7

## Summary

### Background

The case involves an appeal against an order dated 24.11.2021 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi, which rejected CA 734/2018 filed by the Resolution Professional for approval of the Resolution Plan. The Appellants also filed I.A Nos. 5026, 5027 & 5028 of 2021 for cancellation of non-bailable warrants. The Corporate Insolvency Resolution Process (CIRP) was initiated against ‘M/s. Shivkala Developers Pvt. Ltd.'- (Corporate Debtor). The Resolution Plan submitted by the Appellant was approved in the 10th Committee of Creditors' meeting held on 07.11.2018. The Committee of Creditors (CoC) authorised the Resolution Professional to file Application for approval of the Resolution Plan. The Adjudicating Authority issued notice to

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## Facts

The Corporate Insolvency Resolution Process (CIRP) was initiated against M/s. Shivkala Developers Pvt. Ltd. The Resolution Plan submitted by Cimco Projects Ltd. was approved by the Committee of Creditors (CoC) on 07.11.2018. CA-734 of 2018 was filed by the Resolution Professional for approval of the Resolution Plan. The Resolution Applicant was impleaded as a Respondent in CA-734 of 2018 on 03.03.2021. The Resolution Applicant failed to deposit the performance guarantee for the Resolution Plan. On 03.09.2021, the Adjudicating Authority issued non-bailable warrants to arrest the Resolution Applicant. On 24.11.2021, the Adjudicating Authority rejected CA-734 of 2018 and dismissed applications for cancellation of non-bailable warrants. The Resolution Plan did not contain

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## Issues and analysis

### Issue 1: Whether the Adjudicating Authority was justified in rejecting the application for approval of the …

**Ratio:** The Adjudicating Authority can reject a Resolution Plan if the Resolution Applicant fails

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**Reasoning:** The Adjudicating Authority rightly concluded that the inaction on the part of the

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**Interpretation:** The Adjudicating Authority has the power to reject a resolution plan if the

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**Application:** The Resolution Applicant failed to deposit the performance guarantee and did

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## Parties

- **Judges:** Ashok Bh…; M. Satyanarayana…; +1 more
- **Appellants:** M/s. Cimco…
- **Respondents:** Shivkala Developer…; Anup K…
- **Advocates:** Ashish Ma…; Deep B…; +3 more

## Timeline

- **2018-11-07 — Resolution Plan…**: The Resolution Plan submitted by the Appellant was approved in the 10th Committee of…
- **2019-01-24 — CIRP Regulation…**: The provision for submission of performance guarantee was added in Regulation 36 B of the…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 60(5) — Adjudicating Authority for corporate persons](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-60)

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