TaxTMI 
TaxTMI 
2018 (12) TMI 1310
X X X X Extracts X X X X
X X X X Extracts X X X X
....e above matter; (b) That pass an order permitting the applicant to file an affidavit and place the same on record; (c) That pending the hearing and final disposal of the present application the proceedings in the captioned company petition be stayed; (d) That for interim and/or ad interim reliefs in terms of prayer clause and (c) above; (e) That for such further and other reliefs as this Tribunal deemed fit in the facts and circumstances of the present case; (f) That the cost of the present application be provided for; 2. That it is submitted by the applicant that the corporate debtor is wholly owned and subsidiary of JBF Global Pte. Ltd. ("JBF Global"), who holds 100% shareholding in the corporate debtor. The applicant is a financial investor in JBF Global holding Series A Compulsory Convertible Preference Share, which the applicant is entitled to convert into up to 99.99% of ordinary shares of JBF Global (on a fully diluted basis and with all rights that are attached to the ordinary shares of JBF Global, including voting right), upon such conversion KKR (applicant) acquire control over the operations and governance of JBF Global and therefore, indirectly the corporate ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er letter in the month of July 2018 to the financial creditor stating, inter alia, that the applicant proposes to implement a comprehensive solution to the problems faced by all the stake holder of the corporate debtor within a reasonable time frame and sought the cooperation of the financial creditor. The applicant also set out the summary of the transaction. Further, pending admission of the company petition, several negotiation and discussion were held between the applicant and the financial creditor. In the month of August, 2018 the applicant through its affiliate KKR Jupiter (Caymen) Invertors ltd. addressed a binding commitment letter to the financial creditor, as well as, other lender of the corporate debtor, whereby, the applicant agreed to be bound to procure refinancing of the principal amount outstanding under the facility agreement to the said lenders i.e. an aggregate amount of USD 646 million, on or before September 30, 2018. 6. That the Applicant has also proposed to pledge its equity shareholders in JBF Industries Ltd. (constituting 20% of equity share capital of the JBF Industries Ltd.) in favour of IDBI Trusteeship Services Ltd., acting as security trustee for th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion proceedings of the corporate debtor." Thus, when the proceeding is still underway, and the insolvency resolution process against the corporate debtor has not yet been initiated, the intervener cannot take the shelter of section 60(5)(C). Hence, the petition so filed by the applicant cannot be entertained. 10. That it is further submitted by the learned lawyer of the respondent, that owing to the expiry of the time period within which the intervener (through its affidavit KKR Jupiter (Caymen) Investors Ltd.) had proposed to effectuate the refinancing/settlement of the debts owed to the various creditors of the corporate debtor (including the financial creditor) vide its binding commitment letter dated August 21, 2018 (Binding Commitment Letter), the Intervention Application has itself become infructuous. For the sake of clarity, it should be noted that the outer time limit prescribed under the Binding Commitment Letter to effectuate to refinancing proposal was September 30, 2018 ("Long Stop Date"). 11. During the course of argument the respondent relied upon various case laws viz: * Innoventive Industries Ltd. V/S ICICI and Ors. (2018) 1 SSC 407 * Exis Bank Ltd. V/S Lotus ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion filed under Section 7 of the IB Code (as is the case with the captioned company petition), the Adjudicating Authority is only required to satisfy itself regarding the occurrence and existence of a default (of an amount equal to or exceeding INR 1.00 lac). Thus, third parties (like the intervener in the instant case) can have no say or impact on proceedings initiated under Section 7 of the IB Code. That relevant portion of the judgement of Hon'ble NCLAT is reproduced herein below: - "6. From the aforesaid decision, it is clear that the Adjudicating Authority is only to satisfy that the default has occurred and that the Corporate Debtor is entitled to point out that the default has not been occurred in the sense that the debt is not due. No other person has a right to be heard at the stage of admission of the application under Sections 7 and 9 of the I & B Code including the shareholders or the personal guarantor etc." 16. That this position has also been confirmed by the Hon'ble Apex Court in the matter of Innoventive Industries Ltd. (supra) and also relied by the respondent. That relevant portion of the order is reproduced herein below:- "28...... It is at the stage....