Sanjay Davev.Andhra Bank Ltd & Ors

Legal Analysis: Sanjay Dave vs. Andhra Bank Ltd. & Ors

Citation: 2026 INSC 580
Court: Supreme Court of India
Bench: Division Bench comprising Justice K.V. Viswanathan and Justice Vipul M. Pancholi
Judgment Author: Justice K.V. Viswanathan
Date of Decision: May 27, 2026
Nature of Judgment: Civil Appeals under Section 62 of the Insolvency and Bankruptcy Code, 2016 (IBC) against the judgment of the National Company Law Appellate Tribunal (NCLAT), which had dismissed the appellant’s appeals challenging the rejection of his resolution plan and the decision of the Committee of Creditors (CoC) to liquidate the corporate debtor.

Synopsis of the Judgment
The appellant was the promoter/director of the corporate debtor (Oracle Home Textiles Limited) and submitted a resolution plan which was approved by the CoC with 99.90% voting. However, disputes arose over the terms of the Letter of Intent (LoI) issued by the Resolution Professional (RP). The appellant claimed the LoI was conditional (subject to pending litigation and outcome of third‑party applications) and also objected to a clause requiring him to bear the risk of staff‑related claims. He also argued that the time for submitting a performance guarantee was reduced from 45 days to 7 days. The RP forfeited the Earnest Money Deposit (EMD) of Rs.1 crore when the appellant did not accept the LoI. The NCLT dismissed the appellant’s applications and allowed the RP’s application for liquidation. The NCLAT affirmed. The Supreme Court dismissed the appeals, holding that the appellant had full knowledge of the pending litigations and had participated in CoC meetings where these conditions were discussed; he had expressly agreed to the risk‑bearing clause; the reduction of time for performance guarantee was justified as the COVID‑19 relaxation period had expired; and the appellant could not be allowed to approbate and reprobate. The Court reaffirmed that once a resolution plan is approved by the CoC, the successful resolution applicant cannot negotiate further or withdraw, and the CoC’s commercial wisdom to liquidate under Section 33 is not subject to judicial review.

1. Basic Information of the Judgment

• Case Title: Sanjay Dave vs. Andhra Bank Ltd. & Ors.

• Civil Appeal Nos.: 12264-12266 of 2024

• Bench: Justice K.V. Viswanathan and Justice Vipul M. Pancholi (Division Bench)

• Judgment Author: Justice K.V. Viswanathan

• Date of Decision: May 27, 2026

• Citation: 2026 INSC 580

• Appeal From: Judgment dated 29.10.2024 passed by the National Company Law Appellate Tribunal (NCLAT), New Delhi in Company Appeal (AT)(INS) Nos. 1128, 1131 and 1134 of 2024.

2. Legal Framework

Laws and Provisions Involved:

• Insolvency and Bankruptcy Code, 2016 (IBC): Section 12 (CIRP period), Section 30 (submission of resolution plan), Section 31 (approval of resolution plan by adjudicating authority), Section 33 (initiation of liquidation – CoC may decide to liquidate any time before confirmation of resolution plan), Section 62 (appeal to Supreme Court from NCLAT orders).

• IBC (Insolvency and Resolution Process for Corporate Persons) Regulations, 2016: Regulation 36B (Request for Resolution Plan – RFRP).

• Indian Contract Act, 1872: Principles of acquiescence, estoppel, and approbation and reprobation.

Key Precedents Cited and Applied:

• Ebix Singapore Private Limited v. Committee of Creditors of Educomp Solutions Limited and Another (2022) – A resolution plan approved by the CoC is binding and irrevocable as between the CoC and the successful resolution applicant; no further negotiations are permitted after approval; the successful resolution applicant cannot withdraw or modify the plan at its will.

• K. Sashidhar v. Indian Overseas Bank (2019) – The commercial wisdom of the CoC is paramount and not subject to judicial review, except for ensuring compliance with Section 30(2) IBC. The adjudicating authority cannot evaluate the justness of the CoC’s decision.

• Manish Kumar v. Union of India (2021) – Section 33(2) IBC read with its Explanation makes it clear that the CoC may decide to liquidate the corporate debtor any time after its constitution and before confirmation of the resolution plan.

• Chairman, State Bank of India v. M.J. James (2014) – Doctrine of acquiescence: when a party having a right stands by and sees another dealing in a manner inconsistent with that right and takes no action, it reflects assent; such party cannot later complain.

• Nagubai Ammal v. B. Shama Rao (1956) – A party cannot be permitted to “approbate and reprobate” or accept and reject the same instrument.

• Rajasthan State Industrial Development & Investment Corporation v. Diamond & Gem Development Corporation Ltd. (2013) – The doctrine of election is based on estoppel; a party cannot “blow hot‑blow cold” or “fast and loose”.

What the Judgment is About: The judgment addresses the obligations of a successful resolution applicant after the Committee of Creditors (CoC) has approved its resolution plan. It holds that the applicant cannot later raise objections to the terms of the Letter of Intent (LoI) that were discussed and agreed upon during CoC meetings, nor can it refuse to accept the LoI on grounds of “conditionality” when the conditions (pending litigation outcomes and staff‑related risks) were known and accepted. The forfeiture of Earnest Money Deposit (EMD) for non‑acceptance of the LoI is valid under the RFRP. Once the CoC decides to liquidate the corporate debtor due to the applicant’s default, that decision is a matter of commercial wisdom not subject to judicial review. The Court reaffirms that a successful resolution applicant cannot approbate and reprobate.

3. Relevant Facts

• The corporate debtor, M/s. Oracle Home Textiles Limited, was admitted into CIRP on 09.08.2018. A Resolution Professional (RP) was appointed.

• On 06.02.2019, a Request for Resolution Plan (RFRP) was issued. With permission of the NCLT, the appellant (promoter/director of the corporate debtor) submitted a resolution plan.

• On 10.05.2021, the CoC approved the appellant’s resolution plan with 99.90% voting.

• On 23.05.2021, the RP issued a Letter of Intent (LoI) to the appellant. The LoI stated that the approval was “subject to the order reserved by Hon’ble NCLT (Mumbai Bench) in the hearing held on 21st Jan, 2021” (concerning third‑party applications filed by other resolution applicants).

• The appellant claimed that this made the LoI conditional. He filed IA No.1205/2021 seeking an unconditional LoI.

• A second LoI dated 23.06.2021 was issued on similar terms. The appellant also objected to a clause stating that all applications filed by staff, employees, workers etc. would be the risk of the successful resolution applicant and shall be borne by him.

• On 23.07.2021, a third LoI was issued, reducing the time for submitting a performance guarantee from the earlier 45 days (granted due to COVID‑19) to 7 days as originally prescribed in the RFRP.

• The appellant did not accept the LoI. On 02.08.2021, the RP forfeited the Earnest Money Deposit (EMD) of Rs.1 crore under clause 1.9.4 of the RFRP for failure to submit the performance guarantee and non‑compliance.

• The CIRP period ended on 21.02.2023. Since there was no valid resolution plan implemented, the CoC on 05.06.2023 voted for liquidation with 99.61% voting. The RP filed IA No.3914/2023 seeking approval for liquidation.

• The NCLT (Adjudicating Authority) by three separate orders dated 30.04.2024 dismissed the appellant’s IAs (1205/2021 and 2029/2021) and allowed the RP’s IA (3914/2023) for liquidation. The NCLT held that the appellant was aware of the pending litigations and had participated in CoC meetings where these conditions were discussed; that the LoI terms were not alien to the resolution plan; and that the appellant could not now object.

• The appellant filed three appeals before the NCLAT. By judgment dated 29.10.2024, the NCLAT dismissed all appeals, affirming the NCLT’s findings.

• The appellant filed further appeals under Section 62 IBC before the Supreme Court.

4. Issues

1. Whether the Letter of Intent (LoI) issued to the appellant was “conditional” (subject to the outcome of pending third‑party applications before the NCLT) and whether such conditionality vitiated the LoI, entitling the appellant to an unconditional LoI.

2. Whether the clause requiring the successful resolution applicant to bear the risk of claims by staff, employees, and workers (including from pending litigation) was an impermissible additional condition that made the LoI conditional.

3. Whether the reduction of the time for submitting the performance guarantee from 45 days (granted due to COVID‑19) to 7 days in the third LoI was arbitrary and contrary to the CoC’s earlier decision.

4. Whether the forfeiture of the Earnest Money Deposit (EMD) of Rs.1 crore was valid under clause 1.9.4 of the RFRP.

5. Whether the CoC’s decision to liquidate the corporate debtor under Section 33 IBC, after the appellant’s failure to implement the resolution plan, was valid and not subject to judicial review.

6. Whether the appellant was estopped from raising objections to the LoI terms by the doctrine of acquiescence and approbation and reprobation, given his active participation in CoC meetings where these terms were discussed and his express agreement to the risk‑bearing clause.

5. Ratio Decidendi

A. The LoI was not conditional in a vitiating sense; the appellant was fully aware of the pending litigations (Paras 19-22).

The Court held that the stipulation in the LoI that the approval was “subject to the order reserved by Hon’ble NCLT” merely acknowledged the reality that the resolution plan was being considered while third‑party applications (by other resolution applicants) were pending. The appellant had participated in CoC meetings where these pending applications were discussed. The minutes of the 15th CoC meeting (24.01.2020) showed that the appellant was present when the resolution plans of other applicants were discussed in the backdrop of M.A. No.2005/2019 and M.A. No.1618/2019. The appellant submitted his initial resolution plan only after the NCLT’s order dated 18.02.2020 permitting him to do so. Therefore, he could not later insist that his plan be considered without being subject to the outcome of those applications. The mere mention of this fact in the LoI did not make it an objectionable conditional LoI.

B. The clause regarding staff and workers’ claims was expressly agreed to by the appellant (Paras 20-21).

The Court examined the minutes of the 27th CoC meeting (06.05.2021). The appellant had read out clause 7.11 from the addendum to his resolution plan, which stated that if any amount was found due and payable by the Tribunal for the period the plant was functioning during CIRP, “the same will be dealt by Resolution Applicant accordingly”. When asked to clarify, the appellant stated he was not clear. A representative of the lead bank stated that all such applications of staff, employees, workers etc. are the risk of the resolution applicant and shall be borne by him. The minutes recorded: “Mr. Sanjay Dave (Member of the suspended board & Resolution Applicant) agreed to the same.” Therefore, the appellant had expressly agreed to this condition. He could not later turn around and claim it was an unreasonable or conditional stipulation.

C. The reduction of time for performance guarantee from 45 days to 7 days was justified (Paras 23-25).

The Court noted that the 45 days’ time was granted in the 27th CoC meeting (06.05.2021) due to the COVID‑19 pandemic. By the time the third LoI was issued on 23.07.2021, the pandemic situation had improved and the relaxation period had effectively expired. Moreover, the minutes of the 30th CoC meeting (23.07.2021) recorded that the appellant “agreed to submit the [performance bank guarantee] in seven days as prescribed in the RFRP document”. Thus, the appellant had agreed to the 7‑day period. Having agreed, he could not later complain that it was a conditional or unfair reduction.

D. Forfeiture of EMD was valid under clause 1.9.4 of the RFRP (Paras 33-34).

Clause 1.9.4 of the RFRP provided for forfeiture of the Earnest Money Deposit if the successful applicant fails to submit the performance guarantee within the stipulated time or in case of any other non‑compliance with the resolution plan process. The appellant failed to accept the LoI and to submit the performance guarantee. The RP accordingly forfeited the EMD. The minutes of the 31st CoC meeting (26.07.2021) confirmed that the CoC was proceeding with forfeiture because the appellant had not accepted the LoI despite multiple opportunities. The forfeiture was upheld.

E. The CoC’s decision to liquidate under Section 33 IBC is a matter of commercial wisdom and not subject to judicial review (Paras 36-40).

The Court held that Section 33(2) IBC, read with its Explanation, explicitly permits the CoC to decide to liquidate the corporate debtor at any time after its constitution and before the confirmation of the resolution plan. The CoC had voted with 99.61% in favour of liquidation after the appellant failed to implement the plan. This decision is a business decision based on the CoC’s commercial wisdom. As held in K. Sashidhar, the adjudicating authority cannot interfere with the commercial wisdom of the CoC. The NCLAT correctly rejected the appellant’s challenge to the liquidation order.

F. The appellant is estopped by acquiescence and the doctrine of approbation and reprobation (Paras 27-32).

The Court applied the doctrines of acquiescence (from M.J. James) and approbation and reprobation (from Nagubai Ammal and Rajasthan State Industrial Development & Investment Corporation). The appellant had participated in CoC meetings, discussed the pending litigations, agreed to the risk‑bearing clause, and agreed to the 7‑day performance guarantee period. He then refused to accept the LoI and sought an unconditional LoI. This conduct amounted to blowing hot and cold. He could not be permitted to accept the benefits of the resolution plan (approval by the CoC) and then reject the conditions that were integral to it. The Court cited Ebix Singapore for the proposition that once the CoC approves a resolution plan, the successful resolution applicant is bound and cannot negotiate further or withdraw.

G. The appeals were dismissed (Paras 42-45).

The Supreme Court found no merit in the appeals. The NCLT and NCLAT had correctly appreciated the facts and applied the law. The appellant’s attempt to renege from the CoC‑approved plan through technical objections was rightly rejected. The liquidation order was upheld, and the forfeiture of EMD was confirmed.

6. New Legal Principles Established / Reiterated

• Binding nature of a CoC‑approved resolution plan: Once the Committee of Creditors approves a resolution plan, the successful resolution applicant is bound by the terms of the plan and cannot later seek modifications, withdraw, or raise objections to the Letter of Intent that reflect the same conditions discussed and agreed upon during the CoC process. The negotiations end at the approval stage.

• Conditional LoI argument: A stipulation in the LoI that the approval is “subject to the outcome of pending proceedings” does not make the LoI vitiatingly conditional if the applicant was fully aware of those proceedings and participated in the process. Such a stipulation merely acknowledges the legal reality that the resolution plan is subject to the orders of competent judicial or quasi‑judicial authorities.

• Risk‑bearing clause for staff claims: Where the resolution applicant expressly agrees in the CoC meeting to bear the risk of claims by staff, employees, and workers (including any amounts found due by a tribunal for the CIRP period), that clause is binding and cannot later be challenged as unreasonable or conditional.

• Forfeiture of EMD for non‑acceptance of LoI: Under the RFRP, if the successful resolution applicant fails to accept the LoI or to submit the performance guarantee within the stipulated time, the EMD is liable to be forfeited. The applicant cannot avoid forfeiture by raising technical objections about “conditionality” when the conditions were known and agreed upon.

• Commercial wisdom of CoC to liquidate: Section 33(2) IBC, especially the Explanation added in 2019, makes it clear that the CoC may decide to liquidate the corporate debtor at any time before confirmation of the resolution plan, including after a resolution plan is approved by the CoC but before its confirmation by the adjudicating authority, if the CoC finds that the successful resolution applicant is not implementing the plan. Such a decision is not subject to judicial review.

7. Court’s Examination and Analysis of Concepts

• Acquiescence (Para 27): The Court quoted from M.J. James that acquiescence means silent assent or tacit consent; a party with a right who stands by and sees another dealing in a manner inconsistent with that right, and takes no action, cannot afterwards complain. Here, the appellant participated in CoC meetings where the pending litigations were discussed, the risk‑bearing clause was agreed upon, and the performance guarantee timeline was altered. He raised no objection at those meetings. He therefore acquiesced to those conditions.

• Approbation and reprobation (Paras 28-29): The Court quoted Nagubai Ammal and Rajasthan State Industrial Development & Investment Corporation for the principle that a party cannot “blow hot‑blow cold”, “fast and loose”, or “approbate and reprobate”. The appellant had submitted his resolution plan, obtained CoC approval, and then refused to accept the LoI on grounds that were not raised earlier. This was a clear case of approbation and reprobation.

• Binding nature of resolution plan (Paras 31-32): The Court extensively quoted Ebix Singapore to hold that a resolution plan approved by the CoC is binding and irrevocable as between the CoC and the successful resolution applicant. The successful resolution applicant cannot seek further negotiations or modifications. The only conditionality remaining is the approval of the adjudicating authority under Section 31 IBC, which has limited jurisdiction. The appellant’s attempt to insist on an “unconditional LoI” was a subterfuge to delay and eventually renege from the plan.

• Liquidation under Section 33 (Paras 36-40): The Court held that once the CoC resolved to liquidate with the requisite majority (99.61%), and given that the appellant had failed to implement the plan, the liquidation order was mandatory under Section 33(2) IBC. The Explanation to Section 33(2) clarifies that the CoC may take the decision to liquidate at any time after its constitution and before confirmation of the resolution plan. The appellant could not prevent liquidation by his own default.

8. Critical Analysis

Strengths: The judgment is a robust reaffirmation of the binding nature of CoC‑approved resolution plans and the finality of the CIRP process under the IBC. It correctly holds that a successful resolution applicant cannot use technical objections (such as calling an LoI “conditional”) to delay or avoid implementation of a plan that it had proposed and the CoC had approved. The Court’s reliance on the minutes of CoC meetings is thorough – it demonstrates that the appellant had full knowledge and had actively participated in the discussions, and in some instances had expressly agreed to the very clauses he later objected to. The application of the doctrines of acquiescence and approbation and reprobation is apt. The judgment also rightly upholds the commercial wisdom of the CoC to liquidate when the resolution plan fails due to the applicant’s default, and it correctly interprets Section 33 IBC.

Potential concerns: The judgment does not explicitly address the appellant’s argument that the LoI’s reference to the “order reserved by Hon’ble NCLT” made the LoI conditional in the sense that the appellant would be bound by an outcome of a proceeding to which he was not a party. The Court held that he was aware of the proceedings and had participated in CoC meetings, but the appellant was not a party to those third‑party applications. However, the Court’s reasoning that the resolution plan itself was submitted pursuant to an NCLT order and that the appellant could not ask to be insulated from the outcome of other applications is pragmatic: in the CIRP process, the resolution plan is subject to judicial oversight, and pending applications may affect the plan’s viability. The appellant took that risk when he submitted his plan. Another concern is that the judgment does not discuss the possibility that the CoC could have considered extending the time for performance guarantee further, given that the CIRP period was still ongoing. But the Court accepted that the appellant had agreed to the 7‑day period in the 30th CoC meeting, so the point is moot.

Practical impact: This judgment will be cited in all cases where a successful resolution applicant attempts to back out of a CoC‑approved resolution plan or raises objections to the Letter of Intent on grounds of “conditionality”. It makes clear that such objections will not be entertained if the applicant participated in CoC meetings where those conditions were discussed. It also reinforces that the CoC’s decision to liquidate under Section 33 IBC, when a resolution plan fails due to the applicant’s default, is a valid exercise of commercial wisdom and will be upheld. For resolution applicants, the judgment serves as a warning: once you submit a plan and the CoC approves it, you are bound; you cannot renegotiate or withdraw; and your earnest money deposit is at risk if you fail to perform.

9. Final Outcome

• Civil Appeal Nos. 12264-12266 of 2024: Dismissed.

• The judgment dated 29.10.2024 passed by the NCLAT was affirmed.

• The orders of the NCLT (Adjudicating Authority) dated 30.04.2024 dismissing the appellant’s IAs (IA No.1205/2021 and IA No.2029/2021) and allowing the RP’s IA No.3914/2023 (for liquidation) were upheld.

• The forfeiture of the Earnest Money Deposit of Rs.1,00,00,000/- (One Crore) was confirmed.

• The liquidation of the corporate debtor (M/s. Oracle Home Textiles Limited) was upheld.

• All interim orders were vacated.

• The Liquidator (respondent No.3) was permitted to proceed with liquidation in accordance with the law.

• No order as to costs.

10. Practical Application (Use in Court)

• For a resolution applicant (potential SRA): Before submitting a resolution plan, carefully assess all pending litigations, claims by staff/workers, and other contingencies. Ensure that your plan adequately provides for such risks. Once the CoC approves your plan, you are bound. If you have concerns about the terms of the Letter of Intent, raise them during CoC meetings before the plan is approved, not afterwards. Do not agree to clauses in meetings and later claim they are unreasonable. If you fail to accept the LoI or submit the performance guarantee, your EMD will be forfeited, and the CoC may liquidate the corporate debtor.

• For a Committee of Creditors (CoC): Maintain detailed minutes of all meetings, recording the presence and statements of resolution applicants. If an applicant agrees to a condition (e.g., bearing staff claims, accepting a reduced timeline for performance guarantee), ensure that the minutes clearly record that agreement. If the applicant later refuses to accept the LoI, the minutes will be crucial evidence to show acquiescence and approbation/reprobation. The CoC can then proceed to forfeit the EMD and decide to liquidate under Section 33 IBC.

• For a Resolution Professional (RP): When issuing a Letter of Intent, ensure that the terms are consistent with the resolution plan as approved by the CoC and with the discussions in the CoC meetings. If there are pending judicial proceedings, it is not improper to state in the LoI that the approval is subject to the outcome of those proceedings – this is a factual statement, not an objectionable condition. If the SRA refuses to accept the LoI, follow the RFRP provisions for forfeiture of EMD and seek the CoC’s decision on liquidation.

• For the NCLT/NCLAT (Adjudicating Authority): When a successful resolution applicant raises objections to the LoI on grounds of conditionality, examine whether those conditions were discussed in CoC meetings and whether the applicant participated and consented. If the applicant agreed or acquiesced, reject the objections. Also, when a CoC decides to liquidate under Section 33(2) IBC after an SRA’s default, the Explanation to Section 33(2) expressly permits such a decision. The commercial wisdom of the CoC is not subject to judicial review, and the liquidation order must be passed.

11. Court Lines

• “All that the stipulations mentioned was that the LoI would be subject to the final decision of a judicial body in a proceeding to which the CoC and RP were privy. Even if such a stipulation was not mentioned, ultimately it will be the order of the Adjudicating Authority, unless duly called in question and set aside before the higher body, which will be binding on the stakeholders.” (Para 19)

• “The appellant cannot be allowed to approbate and reprobate. In the celebrated case of Nagubai Ammal and Others v. B. Shama Rao and Others, this Court held that a person cannot say at one time that a transaction is valid and then turn around and say that it is invalid.” (Para 28)

• “A party cannot be permitted to ‘blow hot‑blow cold’, ‘fast and loose’ or ‘approbate and reprobate’. Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself.” (Para 29, quoting Rajasthan State Industrial Development & Investment Corporation)

• “The binding nature, as between the CoC and the successful resolution applicant, of the resolution plan submitted for approval by the adjudicating authority is further evidenced from the fact that the CoC issues an LoI to a successful resolution applicant stating that it has been selected as the successful resolution applicant and its plan would be submitted to the adjudicating authority for its approval. The successful resolution applicant is typically required to accept the LoI unconditionally and submit a PBG.” (Para 31, quoting Ebix Singapore)

• “The CoC is statutorily empowered to decide on the liquidation of the Corporate Debtor at any time before the confirmation of the resolution plan. This decision is a collegiate commercial wisdom of the CoC which is not subject to judicial review except for ensuring that the resolution plan meets the requirements of the IBC and related Regulations.” (Para 36)

• “If such artifices are allowed to succeed, the entire architecture of the IBC would crumble and the laudable objects sought to be achieved by the said Code would become a far cry.” (Para 30)

12. Legal Strategy Insight

• For a resolution applicant (SRA) who genuinely believes that the LoI contains new conditions not in the approved plan: Immediately object in writing before accepting the LoI. Raise the issue in a CoC meeting and get it recorded. If the CoC insists on conditions that were not part of the approved plan and that materially alter your obligations, you may challenge the LoI before the Adjudicating Authority. However, note that the Court held in Ebix Singapore that negotiations end after CoC approval. Therefore, this strategy is unlikely to succeed unless the LoI introduces wholly new and unrelated conditions. In most cases, the prudent course is to accept the LoI and perform, because any delay or refusal will lead to forfeiture of EMD and liquidation.

• For a CoC member or RP: To avoid challenges, ensure that all conditions (including pending litigations, risk‑bearing clauses, timelines for performance guarantee) are explicitly discussed in CoC meetings and that the resolution applicant’s consent is recorded in the minutes. If the applicant later refuses to accept the LoI, promptly invoke the forfeiture clause and, if necessary, move the CoC to vote on liquidation. The courts have repeatedly upheld such actions.

• For a legal practitioner advising an SRA: Before submitting a resolution plan, conduct thorough due diligence on all pending proceedings, claims, and potential liabilities. Incorporate appropriate contingencies into the plan. If the CoC approves the plan, do not expect to renegotiate after approval. The Letter of Intent will reflect the terms of the approved plan and the discussions in the CoC meetings. If you have concerns about “subject to outcome of pending proceedings”, note that this is a standard and inevitable condition – no resolution plan can be implemented without judicial approval, and pending applications may affect the plan. You cannot demand an “unconditional” LoI that ignores the reality of ongoing litigation.

• For a liquidator: Once the CoC votes for liquidation under Section 33 IBC, move swiftly to file the application before the NCLT. The Explanation to Section 33(2) makes it clear that the CoC can take this decision at any time before confirmation of the resolution plan. You do not need to wait for the SRA to formally withdraw or for the NCLT to reject the plan. The SRA’s failure to accept the LoI and submit the performance guarantee is sufficient ground for the CoC to conclude that the plan will not be implemented and to vote for liquidation.