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18. Clause 14 of the RFRP deals with 'Performance Guarantee'. Clause 14.2, which provided for Performance Guarantee validity period and invocation by the beneficiary is as follows:

"14.2 The Performance Guarantee shall be valid from the date of issuance of the Letter of Intent for a period of 12 (twelve) months ("PBG Validity Period"). The Performance Guarantee shall be re- issued or extended at least 7 (seven) days prior to the expiry of the PBG Validity Period in the event the implementation of the Successful Resolution Plan is not complete on such date, failing which the Performance Guarantee may be immediately invoked or enforced by the Guarantee Beneficiary, subject to the approval of the CoC."

19. Clause 14.6 also deals with right to invoke the Performance Guarantee. Clause 14.6 is as follows:

"14.6. Other than as set out in Clause 14.2 (Performance Guarantee), the Guarantee Beneficiary shall, subject to the approval of the CoC, have the right to invoke the Performance Guarantee for a period of 30 (thirty) days from the last date of the PBG Validity Period and, without prejudice to Clause 14.2 (Performance Guarantee), the Performance Guarantee can be invoked at any time, if:

20. When we look into Clause 14.2 and 14.6 of the RFRP, the Clause 14.2 clearly contemplate "in the event the implementation of the Successful Resolution Plan is not complete on such date, failing which the Performance Guarantee may be immediately invoked or enforced by the Guarantee Beneficiary, subject to the approval of the CoC". Clause 14.6 provides

-without prejudice to Clause 14.2 (Performance Guarantee), the Performance Guarantee can be invoked at any time, if any of the conditions under Letter of Intent or Resolution Plan are breached or failure of the Successful Resolution Applicant to implement the Resolution Plan to the satisfaction of the CoC. Thus, Clause 14.6 contemplated invocation of Performance Guarantee on failure of the Successful Resolution Applicant to implement the Resolution Plan to the satisfaction of the CoC.

"14.8. The Performance Guarantee shall not be set-off against or used as part of the consideration that the Successful Resolution Applicant proposes to offer in relation to the Company, even if expressly indicated ns such by the Resolution Applicant in the Resolution Plan."

36. The above clause, thus, clearly provides that Performance Guarantee is not to be set-off against any payment, which is to be made by the SRA. We have noted that the equity capital of Rs.76 crores was to made as per the Resolution Plan. Clause 2 of Chapter-IV, we have already extracted above, which indicate that upfront payment of Rs.226 crores should be infused in the Company. Rs.175 crores as upfront payment, including Rs.76 crores as equity capital and Rs.150 crores as external commercial borrowings. The submission of the Appellant - Formation is that the amount of Performance Guarantee of Rs.50 crores and Rs.5 crores EMD was treated towards the equity infusion, since Formation was informed to deposit Rs.21 crores more to complete the equity infusion. When, Clause 14.8 of the Process Memorandum clearly prohibits any set-off against or used of the Performance Guarantee as part of consideration that the SRA proposes to offer in the Plan, the submission of the Appellant, which run counter to specific Clause 14.8, cannot be accepted. In this context, we may refer to the judgment of the Hon'ble Supreme Court in Civil Appeal Nos.5023- 5024 of 2024 - State Bank of Inida & Ors. vs. The Consortium of Mr. Company Appeal (AT) (Insolvency) Nos. 983 & 984 of 2023, 1163 of 2023, 1026 & 1027 of 2023, 1098 & 1099 of 2023, 1100 & 1101 of 2023, 1236 of 2023 & 1237 of 2023 Murari Lal Jalan and Mr. Florian Fritsch & Anr. decided on 07.11.2024. In the above case also the SRA had given a PBG of Rs.150 crores. The first tranche of payment was to be made by 31.01.2024 amounting to Rs.350 crores. In the Appeal, which was before the NCLAT, the SRA submitted that in pursuance of the order passed by the Hon'ble Supreme Court dated 18.01.2024, SRA has deposited an amount of Rs.200 crores and Rs.150 crores was already infused towards PBG security, be adjusted in the payment of Rs.350 crores, which was to be paid by 31.01.2024. The said submission of the SRA was accepted and this Tribunal took the view that as per the Resolution Plan for first tranche of payment, the PBG can be adjusted. The order of the NCLAT came to be challenged in the aforesaid Appeal by the State Bank of India and Hon'ble Supreme Court framed one of the question, i.e. Question-I, which is to the following effect: