2025 (8) TMI 1720 - AT - IBC

Appeal dismissed; Section 7 admissions upheld after finding financial creditors proved default, date of default 15.11.2022 affirmed

NCLAT dismissed the appeal and upheld admission of Section 7 applications, finding financial creditors proved defaults under the loan agreement and ... Admission of section 7 application - Assignment in accordance with provisions of SARFAESI Act or not - dismissal of Section 7 Application filed on behalf of the Lenders - applicability of principle of res-judicata - Corporate Debtors are profitable Companies earning substantial profits or not - denial of existence of Cash Management Agreement - obligation to consider the amount transferred to Lenders under Cash Management Agreement towards servicing of debt for returning a finding of default by the Corporate Debtor - obligation to maintain DSRA reserve as per Loan Agreement - defaults in payment of Loan amount exists - rejection of submission of Corporate Debtor on ground of end use Certificate issued by Corporate Debtor - default towards ECLGS-1 sanctioned on 30.12.2020 as per date of default 15.11.2022 - Financial Creditors have been able to prove default under the Loan Agreement or not - HELD THAT:- There cannot be any dispute to the proposition that event of default must arise from the Agreement. Several judgments of this Tribunal and the Hon'ble Supreme Court on the said proposition, need no repetition. In the present case, the event of default has been noticed in Clause 19 of the Agreement. Another proposition, on which reliance has been placed by the Appellant is that cash liquidity of the CDs and its financial health, which is relevant to be noticed and the purpose and object of the IBC is to see an attempt to revive the CD and make it a running concern. In the present case, reliance has been placed by the Appellant on judgment of the Hon'ble Supreme Court in Indus Biotech Put. Ltd. vs. Kotak India Venture (Offshore) Fund & Ors. [2021 (3) TMI 1178 - SUPREME COURT]. There can be no dispute to the proposition laid down by the Hon'ble Supreme Court in the above case. Learned Counsel for the Appellant also referred to the judgment of the Hon'ble Supreme Court in Vidarbha Industries Power Ltd. vs. Axis Bank Ltd. [2022 (7) TMI 581 - SUPREME COURT], where the Hon'ble Supreme Court held that the discretionary power is not to be exercised arbitrarily or capriciously. The ratio laid down by the Hon'ble Supreme Court in the above cases, do not come to any aid to the Appellant in the present case, since the Adjudicating Authority by the impugned order has considered all relevant facts and thereafter has come to the conclusion that Section 7 applications need admission. All relevant factors, which need to be considered, have been considered and specially in the present case, this Tribunal vide its order dated 08.01.2025, while remanding the matter for fresh consideration has highlighted the factors, which need to be considered by the NCLT while considering the applications afresh. The Adjudicating Authority heard the applications afresh and adverted to all the aspects which have been noticed in order of this Tribunal dated 08.01.2025. Lastly, the learned Counsel for the Appellant has relied on the observation of this Tribunal in judgment dated 08.01.2025 with regard to utilizing of Rs. 140 crores of the ECLGS-1 to evergreen the loan facilities of the Lenders. The Adjudicating Authority has adverted to the said observation of this Tribunal and has noticed the said submission and the relevant observation has been made by the Adjudicating Authority in paragraph 6.2.10.12. The Adjudicating Authority has referred to Clause 18.39 of the Agreement, which obliged the Borrower to meet the loan obligations, even if it is in contravention of the purpose for which the loan was sanctioned. It has also been held by the Adjudicating Authority that CD has never raised any grievance in the above relation, when amount received in the Retention Account from ECLGS Facilities were utilized for adjustments/ appropriation. The Adjudicating Authority in the impugned order after considering all relevant facts on the record, including the Statement of Accounts and the materials placed by both the parties, has returned finding that date of default is 15.11.2022 and has also upheld the loan recall notice dated 15.02.2023 and other circumstances, under which the CDs need resolution has also been considered by the Adjudicating Authority. There are no ground to interfere with the order of the Adjudicating Authority - appeal dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether the assignment of financial facilities to the Financial Creditor is open to challenge in the Section 7 proceedings after being upheld by the High Court. 2. Whether withdrawal of earlier Section 7 petitions by erstwhile lenders operates as res judicata to bar fresh Section 7 petitions filed by assignee Financial Creditor. 3. Whether the Cash Management Agreement (CMA) and amounts in the Retention Account must be considered in determining default as on the alleged date of default (15.11.2022). 4. Whether the alleged excess withdrawal/appropriation from the Retention Account (claimed excess Rs.10,35,88,444) negates the existence of default on 15.11.2022. 5. Whether amounts held in Debt Service Reserve Account (DSRA) were required to be appropriated to avert default and whether such appropriation would remove default on 15.11.2022. 6. Whether the ECLGS disbursements and their alleged diversion to service other facilities (evergreening) preclude treating ECLGS dues as repayable/defaulted. 7. Whether the Lender's recall notice dated 15.02.2023 was validly exercisable under the loan agreement and whether subsequent recall affects the default analysis. 8. Whether the Adjudicating Authority properly applied Section 7 IBC principles (existence of debt and default) and whether admission was vitiated by malafide intent or failure to consider relevant material. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Validity of assignment and challengeability Legal framework: Assignment of loan claims is governed by applicable contract law and related statutes; judicial pronouncements recognize finality of High Court determinations on assignment. Precedent Treatment: The Tribunal noted the High Court had upheld the assignment and treated that judicial determination as binding in these proceedings. Interpretation and reasoning: The Court held that once the High Court had upheld the assignment, the assignee's title to sue under Section 7 could not be re-litigated in the Section 7 proceeding. The Adjudicating Authority was entitled to act on that status. Ratio vs. Obiter: Ratio - a High Court's upholding of assignment precludes re-opening its validity in the subsequent Section 7 admission stage. Conclusion: Assignment not open to challenge in these appeals; the Adjudicating Authority correctly proceeded on the basis of a valid assignment. Issue 2 - Effect of prior withdrawal (res judicata) of Section 7 petitions Legal framework: Principles of res judicata and finality; effect of withdrawal of a petition versus adjudication on merits. Precedent Treatment: The Tribunal previously held (in remand order) that withdrawal of earlier petitions by erstwhile lender would not operate as res judicata to bar the assignee's Section 7 petitions. Interpretation and reasoning: The Court reiterated that mere withdrawal of earlier petitions does not preclude a fresh aggrieved creditor (assignee) from instituting Section 7, especially where this Tribunal had declined to express conclusive opinion on substantive issues in the remand order. Ratio vs. Obiter: Ratio - withdrawal does not result in res judicata against a different creditor bringing fresh proceedings; the remand order did not create conclusive findings that bind the Adjudicating Authority. Conclusion: Section 7 petitions by the assignee were maintainable; res judicata did not bar admission. Issue 3 - Role of Cash Management Agreement (CMA) and Retention Account in determining default Legal framework: Contractual mechanism (CMA) channels hotel revenues: 66% to Expense Account, 34% to Retention Account for servicing debt; Clause 18.39 obliges borrowers to pay from other funds if retention insufficient. Precedent Treatment: Remand directed Adjudicating Authority to consider CMA and retention account; Adjudicating Authority complied and examined reconciliations and statements of accounts. Interpretation and reasoning: The Court accepted that CMA is a mechanism relevant to determine sufficiency of funds; however, CMA does not absolve borrower from primary obligation to repay. Clause 18.39 mandates borrowers to supply other acceptable funds when retention is insufficient. The Adjudicating Authority inspected retention balances (including specific appropriations) and found retention funds insufficient on 15.11.2022. Ratio vs. Obiter: Ratio - CMA must be considered but cannot override borrower's contractual repayment obligation; absence of sufficient funds in retention does not preclude finding default where borrower failed to supply other funds as contracted. Conclusion: CMA and Retention Account were properly considered; insufficiency of retention funds did not negate default because borrower bore the duty to top up. Issue 4 - Alleged excess withdrawal/appropriation from Retention Account Legal framework: CMA prescribed reconciliation and procedure for overdraws; obligation to refund overdrawn amounts placed on both financier and owner; overdrawn amounts may be appropriated toward borrower obligations if not disputed by operator action. Precedent Treatment: Adjudicating Authority examined monthly reconciliations and relevant CMA clauses and noted overdraws did not pertain to the precise period material to default and that appropriations were applied to borrower obligations. Interpretation and reasoning: The Court found the claimed excess withdrawal was an appropriation toward obligations and not an advance payment relieving future obligations; overdrawn sums were used to satisfy obligations which the borrower otherwise had to meet under Clause 18.39. No evidence was shown that withdrawals exceeded lender entitlement to service loan obligations. Ratio vs. Obiter: Ratio - mere claim of excess withdrawal does not negate default absent demonstration that lender took amounts beyond entitlement and that such withdrawal resulted in pre-payment obviating due instalments. Conclusion: Excess withdrawal claim did not establish absence of default on 15.11.2022; Adjudicating Authority rightly rejected this defence. Issue 5 - Appropriation of DSRA and effect on default Legal framework: DSRA constituted under Loan Agreement; rules of appropriation (Clause 29.1) require pro-rata adjustment across facilities; DSRA in loan agreement did not extend automatically to ECLGS facilities. Precedent Treatment: Adjudicating Authority computed pro-rata entitlement of DSRA to ECLGS interest and principal and concluded that even full appropriation would not eliminate default. Interpretation and reasoning: The Court accepted the Adjudicating Authority's pro-rata approach: DSRA could be applied pro-rata across obligations but its quantum (e.g., Rs.3 crores) was insufficient to wipe out outstanding dues under all credit facilities; appropriation of DSRA would in any event increase loan outstanding in certain respects and could not be unilaterally applied solely to ECLGS unless contractual entitlements permitted. Ratio vs. Obiter: Ratio - DSRA appropriation must follow agreed rules and pro-rata application; limited DSRA balances did not prevent finding of default. Conclusion: DSRA utilization would not have eliminated default; Adjudicating Authority's conclusion stands. Issue 6 - Use of ECLGS funds to service other facilities (evergreening) and liability under ECLGS Legal framework: Purpose of ECLGS disbursements may be specific, but contractual adjustments/appropriations with borrower consent can change application; Clause 18.39 allows borrower obligations to be serviced from other funds as acceptable to the lender. Precedent Treatment: Tribunal had earlier flagged potential misuse (evergreening) but remanded for fresh consideration; Adjudicating Authority considered evidence and concluded adjustments occurred with mutual consent and resulted in reduced interest/principal under other facilities. Interpretation and reasoning: The Court observed that even if disbursements deviated from original sanctioned purpose, documented appropriations and lack of contemporaneous grievance by borrower indicated acquiescence; such adjustments do not negate the assignee's entitlement to repayment of ECLGS disbursements as obligations had arisen. Ratio vs. Obiter: Ratio - alleged diversion of ECLGS funds to service other loans does not per se absolve borrower of ECLGS obligations where parties consented or acquiesced; it is a matter of contractual fact to be examined. Conclusion: ECLGS dues remained payable; evergreening allegation did not preclude finding default. Issue 7 - Validity of recall notice (15.02.2023) and its effect Legal framework: Loan agreement clause granting lender right to recall upon anniversaries and on occurrence of events of default; recall accelerates outstanding amounts. Precedent Treatment: Adjudicating Authority found clause granting recall right post-five year anniversary and upheld lender's exercise by notice dated 15.02.2023. Interpretation and reasoning: The Court endorsed the Adjudicating Authority's view that clause 7.2.6 conferred a contractual right to recall after specified anniversaries and that the recall notice validly accelerated liabilities; recall and subsequent defaults were properly considered cumulatively. Ratio vs. Obiter: Ratio - contractual recall rights when exercised validly accelerate debt and are relevant in default analysis. Conclusion: Recall notice upheld; it legitimately affected the quantum and timing of obligations and supported admission under Section 7. Issue 8 - Admission under Section 7: debt, default, discretion and allegations of malafide Legal framework: Section 7 IBC requires proof of debt and default; once NCLT/NCLAT is satisfied default occurred, discretion to refuse admission is limited (citing Supreme Court authority that default being established usually mandates admission). Precedent Treatment: The Court applied established principles (including cited Supreme Court authority) that existence of debt and non-payment when due is determinative of admission under Section 7, subject to limited judicial discretion where exceptional circumstances exist. Interpretation and reasoning: The Adjudicating Authority evaluated statements of account, CMA, DSRA, ECLGS schedules and concluded defaults existed on 15.11.2022; positive EBITDA did not negate inability to meet contractual repayment obligations. Allegation of malafide motive by the Financial Creditor was rejected on facts (e.g., existence of large claimed dues, recall notice, and OTS indicating admitted indebtedness). The Tribunal emphasized remand order did not express conclusive views; the Adjudicating Authority's fresh consideration satisfied statutory test for admission. Ratio vs. Obiter: Ratio - where, after full consideration of contractual documents and accounts, debt and default are established, admission under Section 7 is appropriate; commercial solvency or profit metrics (EBITDA) do not automatically negate default. Conclusion: Adjudicating Authority correctly admitted Section 7 petitions; allegations of mala fides and other defenses were insufficient to displace findings of debt and default. Appeals dismissed; order of admission sustained.