TaxTMI 
TaxTMI 
2023 (7) TMI 208
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....Bank / Petitioner'), under Section 7 of the I & B Code, 2016, read with Rule 4 of I & B (AAA) Rules, 2016, passed by the 'Adjudicating Authority' ('National Company Law Tribunal', Hyderabad Bench-I, Hyderabad). 2. The 'Adjudicating Authority' ('National Company Law Tribunal', Hyderabad Bench-I, Hyderabad), while passing the 'impugned order' dated 10.10.2022 in CP (IB) No. 43/7/HDB/2020 (Filed by the '1st Respondent / Financial Creditor / Bank / Petitioner'), under Section 7 of the I & B Code, 2016, read with Rule 4 of I & B (AAA) Rules, 2016, among other things, at Paragraph Nos. 60 to 70, had observed as under: 60. "In the above backdrop, we proceed to decide the Point, by referring at the outset to Direction 9 of the Reserve Bank of India (Prudential Framework for Resolution of Stressed Assets) Directions 2019, wherein it is stated that : "In any case, once a borrower is reported to be in default by any of the lenders mentioned at 3(a), 3(b) and 3(c), lenders shall undertake a prima facie review of the borrower account within thirty days from such default ("Review Period"). During this Review Period of thirty days, lenders may decide on the resolution strategy, including th....
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....he above along with relevant provisions / clauses in RBI Directions, 2019 and the ICA dated 06.07.2019, supra, we are unable to subscribe to the view of the Ld. Sr. Counsel for the corporate debtor as, Clause 13.2 of the ICA, categorically states that in the event the Lenders decide on implementation of a Resolution Plan the standstill period shall extend during the implementation of the Resolution Plan (which is currently 180 (one hundred and eighty) days from the end of the Review period, thus making the approval of the resolution plan if any within 30 days imperative and only upon such approval the stand still period gets extended to 180 days. Therefore, the sine qua non, for extension of the standstill period from initial 30 days to 180 days, the lenders should decide to implement the Resolution Plan, lest the initial period of 30 days will not get enlarged to 180 days. 64. During the course of hearing, we have specifically inquired with the learned Senior counsel for the financial creditor whether any resolution plan as contemplated under the RBI Directions, supra, has been received from the Corporate Debtor within the initial period of 30 days, to which the learned senior c....
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.... aforesaid standstill provision shall not preclude the lenders from initiating or continuing any action against the borrower or its promoters / directors / officials or other persons for criminal offences." Hon'ble NCLAT in re. Amitabh Kumar Jha Vs. Bank of India, supra, held that: " .. .. The Clauses in the 'Inter-Creditor Agreement' would not supersede the rights and obligations of Rupee Lenders in their independent capacity and this is further reinforced by Clause 1.3 of the 'Inter-Corporate Agreement". The ruling below, in re, relied on by the Ld. Sr. Counsel for the Applicant wherein it was held that; "...... notwithstanding the fact that neither the claims barred by law nor do such Financing Documents clothe the 'Corporate Debtor', with a right to disentitle the "Financial Creditor' from enforcing its claim, in its individual capacity, despite being a member of the consortium of lender." Further, the statutory right across the ambit of Section 7 of the IBC cannot be curtailed or made subservient to any inter-creditor agreement and accordingly the appeal was dismissed." 67. The submission of the learned senior counsel for the Financial Creditor that, even if there is....
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....he 'Adjudicating Authority' ('National Company Law Tribunal', Hyderabad Bench-I, Hyderabad), had not applied its mind, while 'Admitting' the Section 7 Petition 'CP (IB) No. 43 / 7 / HDB / 2020', because of the fact that basic requisites of 'Debt' and 'Default', that are required to be examined and 'proven', prior to the 'admission' of 'Petition', seeking to initiate 'Insolvency Process', was not established. 4. The Learned Senior Counsel for the Appellants contends that other than the existing 'Term Loans', the 'Corporate Debtor' / 'GVK Power (Goindwal Sahib) Ltd.', had required the 'Additional Funds', for 'Working Capital', and meeting the 'Operational Expenses'. Indeed, according to the 'Appellants', the 'Project Lenders', including the '1st Respondent', had agreed for the 'Corporate Debtor', to receive the 'Financial Assistance', from 'Deutsche Bank AG, Mumbai Branch and Deutsche Bank International Asia Limited (i.e., the 'Priority Lenders'). 5. The Learned Counsel for the Appellants submits that, in terms of the 'Priority Facility Agreement' dated 30.04.2017, and the 'Priority Debenture Trust Deed' dated 30.04.2017, the 'Corporate Debtor', was bound to 'repay', the 'Priority ....
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....w Period', came into effect from 07.06.2019. 11. It is the version of the Appellants that, on 02.07.2019, the 'Consortium of Lenders', had decided that the 'Resolution Plan', outside the scope of the I & B Code, 2016, would be a better option and had agreed to execute an 'Inter Creditor Agreement', after taking internal approvals from their respective managements. As a matter of fact, on 06.07.2019, an 'Inter Creditor Agreement', was executed between the 'Project Lenders' and 'Priority Lenders' and the 'E & Y', was appointed by the 'Corporate Debtor', as the 'Process Advisor', to help prepare a suitable 'Resolution Plan'. 12. The Learned Counsel for the Appellants points out that as per Clause 7.3 (b), read in consonance with the ingredients of Clause 13 (Stand Still Clause) of the ICA dated 06.07.2019, during the 'Resolution Process', no 'Lender', including the 'Dissenting Lender', can initiate any 'Legal action', against the 'Corporate Debtor', including a Civil action or the initiation of the proceedings, under the I & B Code, 2016. That apart, the stand-still period from 06.07.2019 is for 180 days, which would have ended on 06.01.2020, prior to that, Section 7 Petition, was f....
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....is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise." 17. Advancing his argument, the Learned Counsel for the Appellants points out that post the filing of 'Section 7 Petition / Application', by the '1st Respondent / Bank', the 'IDBI Trusteeship Services Limited' ('Bond Trustee'), had filed a 'Commercial Suit', before the Hon'ble High Court of Bombay, for release of a sum of Rs.292.70 crores from the 'Trust and Retention Account' ("TRA") for repayment of debt, payable by the 'Corporate Debtor', to the 'Priority Lender - II', from the TRA Account, to enable the 'Corporate Debtor', to pay the 'Outstanding Dues', to 'Priority Lender'. Further, the Hon'ble High Court of Bombay, had passed an 'Order' on 26.06.2020, restraining all the 'Lenders', from withdrawing any sum from the 'TRA' of the 'Corporate Debtor'. 18. According to the Appellants, the Hon'ble High Court of Bombay through its Order dated 19.08.2020, had recognised and upheld the 'Priority Rights', to payments by the 'Corporate Debtor', to the 'Priority Lenders', in the instant case, thereby, concretely establishing the fac....
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....te Electricity Regulatory Commission', to the 'Corporate Debtor', over a period of time and that the said monies, so paid, will be used for the payments to be made to the 'Lenders'. Also that, the 'Corporate Debtor', had preferred an 'Appeal', against the 'Order' dated 17.01.2020 of 'Punjab State Electricity Regulatory Commission', before the 'Appellate Tribunal' for Electricity and the said 'Appeal No. 41 of 2020', is presently, pending for an 'Adjudication'. 24. According to the Appellants, if the 'Capital Cost', as claimed by the 'Corporate Debtor', is declared by 'APTEL', as payable, then, in terms of the 'PPA' and applicable 'Punjab State Electricity Regulatory Commission Tariff Regulations', a 'Corporate Debtor', will be entitled for an interest at 13.50% per annum (SBI rate of interest + 350 base points), from the date the said amount is incurred, till the date the said amount is paid. 25. The Learned Counsel for the Appellants contends that the aforesaid amount includes, the 'Principal Sum', lent by the 'Senior Lenders' itself, including the '1st Respondent / Bank', as well as the 'Interest', during 'Construction' ('IDC') 'paid / payable', by the 'Corporate Debtor', to th....
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....ore, an 'Action', would be in negation to the tenets of the I & B Code, 2016. To fortify his contention, the Learned Counsel for the Appellants, falls back upon the decisions of the Hon'ble Supreme Court in (a) Transmission Corporation of Andhra Pradesh Limited v. Equipment Conductors and Cables Limited, reported in (2019) 12 SCC 697 (b) Mobilox Innovations Private Limited v. Kirusa Software Private Limited, reported in 2018 1 SCC 353 and (c) The decision of this 'Tribunal', in Neelkanth Township and Construction Private Limited v. Urban Infrastructure Trustee Limited. 28. The Learned Counsel for the Appellants, brings it to the notice of this 'Tribunal', that the facts and circumstances of the instant case of hand, are similar, to the factual Matrix in the Hon'ble Supreme Court's Judgment dated 12.07.2021, in Vidarbha Industries Power Limited v. Axis Bank Limited (Civil Appeal No. 4633 of 2021). Further, in both the cases, it can be inferred that there is a substantial sum of money that is payable by the 'Punjab State Power Corporation Limited' to the 'Corporate Debtor', even if the same is over a period of time, the monies and proceeds realised, would ultimately, be paid to the ....
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....mplex Limited, (vide Comp. App (AT) (INS.) No. 557 of 2018 - reported in India Kanoon), wherein, it is observed that "The consequential impact of the commencement of CIRP will be moratorium". 34. Also, in the Judgment in Mahendrabhai Bhaskarbhai Patil v. Maitreya Plotters & Structures Pvt. Ltd., reported in 2019 , SCC Online, NCLT 4910, wherein, it is held that "The consequential impact of the commencement of CIRP will be moratorium". 35. The Learned Counsel for the Appellants, adverts to the 'Order' dated 15.06.2020, in Narendra Kumar Mohta v. Vintage Foods & Industries Limited and others (vide IA No. 148 / 2020 in CP(IB) No. 64 / BB / 2019), passed by the 'Adjudicating Authority' ('Tribunal'), wherein, it is observed that "ordinarily moratorium cannot have retrospective effect". 36. The Learned Counsel for the Appellants takes a stand that a Certified Copy was applied for and obtained by the 'Corporate Debtor', on 19.10.2022, which reflects the 'Date of Commencement of Moratorium', to be 26.06.2020. But, the 'Certified Copy' of the 'Impugned Order', was secured by the '1st Respondent / Financial Creditor', on 21.10.2022 and that the 'Date of Commencement of Moratorium', was on....
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....Respondent / Financial Creditor'), and the fact that the payments under such Facilities, are outstanding were not denied by the 'Corporate Debtor', as mentioned in Paragraph 22 of the 'Impugned Order'. 43. The 1st Respondent / Bank, takes a stand that the 'Corporate Debtor', had issued a 'Revival Letter', dated 13.06.2019, acknowledging the 'Debt', owed to all the 'Lenders'. Also that, the 'Loan Account Statements' of the 'Corporate Debtor', shows that "no payments, were received after December 2017, till the date of filing of the Application". Besides these, the 'Record of Default', was filed with 'NESL', and further that, a 'Recall Notice', dated 17.12.2019, was issued by the 1st Respondent / Bank / Financial Creditor', declaring all amounts approximately due sum of Rs.442 Crores, payable immediately. 44. The Learned Counsel for the 1st Respondent / Bank points out that the 'Priority Arrangements' or an 'Inter se Arrangement', regarding the manner of 'Distribution of Proceeds', among the various 'Creditors' of the 'Corporate Debtor', and do not have any bearing on the 'Admission of the Company Petition'. 45. The clear cut contention of the 1st Respondent / Bank is that, there ....
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....ical for the 'Corporate Insolvency and Resolution Process', to continue, in accordance with the 'impugned order', in order to protect the interest of '1st Respondent / Financial Creditor', and to prevent any further 'deterioration' in the 'Value of the Assets'. 52. According to the 1st Respondent / Bank, the 'Debts' of the 'Corporate Debtor', are not transitory, as the initial defaults, occurred as early as 2017. In fact, as recorded in the 'Minutes of the Meeting' of the 'Joint Lenders Forum', dated 11.01.2022, the other 'Lenders', also intend to initiate proceedings under the I & B Code, 2016, as the condition of the Corporate Debtor, was not improving and no acceptable 'Resolution Plan', was put forward by the Corporate Debtor or the Appellants. 53. The Learned Counsel for the 1st Respondent / Bank raises a plea that as of 31.03.2022, the Corporate Debtor's liabilities had exceeded its Assets, by approximately INR 2947 Crores and the Declaration of the Asset Value of the Corporate Debtor was evident from the fact that the Corporate Debtor had recorded a Cash Loss of INR of 631 Crores (approximately for the Financial Year 2021-2022 and INR of 887 Crores approximately for the Fi....
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....19, was issued to the 'Lead Bank / IDBI Bank', by the '1st Respondent / Financial Creditor', and email communications, were also exchanged between the 'Lender Banks'. 60. The Learned Counsel for the 1st Respondent / Bank, brings it to the notice of this 'Tribunal', that the 'Inter Creditor Agreement', was not signed by all the 'Members', including the 'Priority Lender', and the Appellants had omitted Clause 13 (2) of the said Agreement, which specifies that the stand still provision applies to the initial period of 30 days, from the date of commencement of the review period and admittedly the review period commenced from 06.07.2019. 61. The Learned Counsel for the 1st Respondent / Bank points out that Clause 13 of the 'Inter Creditor Agreement', mandating the stand still is not prohibiting the 1st Respondent / Bank / Financial Creditor from preferring an Application, under Section 7 of the I & B Code. In reality, the Section 7 Application was filed by the 1st Respondent / Bank on 20.12.2019, well past the conclusion of the stand still period. Moreover, the 1st Respondent / Bank in the Meeting that took place on 30.04.2020, had stated that the 'One Time Settlement Proposal', ought....
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....ariff Order, had approved Project Cost of only Rs.3,058 Crores (approximately). Moreover, the 'PSERC', through the 'Tariff Order', had fixed the Tariff, that can be charged by the Corporate Debtor at Rs.1.419 per KWh (as opposed to the Provisional Tariff of Rs.2.2 per KWh, fixed earlier by the 'PSERC', through Order dated 28.03.2018. 67. The Learned Counsel for the 1st Respondent / Bank contends that contrary to the Appellants' Claim, the Corporate Debtor shall receive the 'Approved Project Cost Rs.3,058 Crores', over a long period of time, as required by the 'Tariff Regulations'. 68. As a matter of fact, the Corporate Debtor, was permitted to recovery only a sum of Rs.135.98 Crores for the Financial Year period 2016-2017, and even in the event of Corporate Debtor succeeding before APTEL in its Appeal, the approved Project Cost of Rs.4,441 Crore, shall be recovered over several years. That apart, the Corporate Debtor, had already commenced recovering a Portion of these amounts, which were insufficient to meet its current 'Debt Obligations', towards the '1st Respondent / Bank', and the other 'Consortium Lenders'. 69. The Learned Counsel for the 1st Respondent / Bank, adverts to t....
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....te Debtor in Vidarbha Industries, would receive sufficient funds to repay the Financial Creditor. 72. Apart from the above, even in the instant case, if APTEL rules in favour of the Corporate Debtor and determines the capital cost as Rs.4,441 Crores, that amount does not accrue to the Corporate Debtor. Rather, the Corporate Debtor is only permitted to recover 4.5% (appx.) of such amount for every year of operations. 73. The Learned Counsel for the 1st Respondent / Bank points out that in the present case, the 'PSERC's Tariff Order', merely calculated the 'capital cost', of the 'Project', which would be factored in while determining the tariff. The entire capital cost is not immediately realisable. 74. According to the Learned Counsel for the 1st Respondent / Bank, in the present case, as seen from the Balance Sheet of the Corporate Debtor, in respect of the Year 2021 - 2022 Financial Year, the 'Financial condition of the Corporate Debtor', is 'Precarious', with 'Liabilities', far exceeding its Assets, by almost Rs.3,000 Crores. 75. Furthermore, 'No Acceptable Resolution Plan', was received from the Corporate Debtor and added further, 'No Acceptable Resolution Plan', was receive....
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....on 01.10.2019. 79. The Learned Counsel for the 1st Respondent / Bank, while winding up, prays for 'Dismissal' of the instant 'Appeal', by this 'Tribunal', to secure the 'ends of Justice'. Status Report of 2nd Respondent / Resolution Professional : 80. The '2nd Respondent / Resolution Professional', took control of the 'Management' of the 'affairs' of the 'Corporate Debtor', along with his Team, on 19.10.2022, and further that a 'Public Announcement', was issued on 21.10.2022, announcing the 'Initiation' of 'Corporate Insolvency Resolution Process' of the 'Corporate Debtor', and calling for the 'Submission of Claims', as per Section 15 of the Code, which was published in 'Economic Times', 'Nava Telangana', 'Punjabi Tribune', Newspapers. The last date for 'Submission of the Claims', was on 01.11.2022. 81. The 2nd Respondent, upon receipt of 'Claims', from numerous 'Creditors', had verified the same and the 'Total Financial Creditors' Claims were INR 6,584.60 Crores, out of which, INR 6,502.90 Crores, were provisionally admitted. Indeed, the 'Total Operational Creditors' Claims received, till date, were INR 245.40 Lakhs, which are under consideration. Moreover, a 'Report', on the ....
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....be established, not only by their 'Words', but by their 'Conduct', as per decision of the Hon'ble Supreme Court in Bharat Petroleum Corporation Limited v. Great Eastern Shipping Company Ltd., reported in AIR 2008 SC 357. Tribunal's Role: 89. Undoubtedly, the 'Orders' and 'Judgments' of a 'Tribunal' / an 'Appellate Tribunal', do have 'sanctity', in 'Law'. In fact, 'Inviolability of Judicial Proceedings', is the foundation of the matter. There may not be an 'Expediency', in 'Pronouncement' of an 'Order' / 'Judgment', by a 'Tribunal' / an 'Appellate Tribunal'. An 'Order' / 'Judgment' of a 'Tribunal' / an 'Appellate Tribunal', in a given case, must be written with a positive vein. No wonder, the 'Function of a 'Tribunal', is to enthuse confidence and maintain the trust and faith of the 'Litigants' / 'Stakeholders', in our 'Processual Justice Delivery System' Evaluation: 90. As seen from Section 7 Petition in CP (IB) No. 43/7/HDB/2020, on the file of 'Adjudicating Authority' / 'NCLT' Bench, Hyderabad, Form I ('Part - IV) 'Particulars of Debt', it is mentioned that the Total Debt, sanctioned by the 'Financial Creditor' / 'Axis Bank Ltd.' ('Petitioner'), to the 'Corporate Debtor' / 'G....
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....he cost overrun, requested an Additional Rupee Facility, not exceeding in aggregate Rs.497,00,00,000/- (Rupees Four Hundred and Ninety Seven Crore Only) and a Facility Agreement dated 07.08.2015 ('Second Facility Agreement') was entered between the Corporate Debtor and the Rupee Lenders, which superseded the bilateral arrangements entered into between the 'Corporate Debtor' and certain 'Rupee Lenders', including the 'Financial Creditor'. As a matter of fact, the financial commitment of the 'Financial Creditor', in terms of the 'Second Facility Agreement', remained the same as per its 'Bilateral Term Loan Agreement', dated 24.12.2014, i.e., Rs.41,00,00,000/- (Rupees Forty One Crore only). 93. Furthermore, pursuant to a request from the 'Corporate Debtor', the '1st Respondent / Bank / Petitioner', through a Sanctioned Letter dated 22.09.2015, had sanctioned a Term Loan - III of Rs.40,25,00,000/- and because of further delays in implementing the 'Project', there was cost overrun ('2nd and 3rd Cost Overrun'), and the 'Corporate Debtor', in order to meet the united debt and part finance the cost overrun, requested an Additional Rupee Facility, aggregate not exceeding Rs. 471,54,00,000/....
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....stressed assets, including the timelines for resolution. Since default with any lender is a lagging indicator of financial stress faced by the borrower, it is expected that the lenders initiate the process of implementing a resolution plan (RP) even before a default. In any case, once a borrower is reported to be in default by any of the lenders mentioned at 3(a), 3(b) and 3(c), lenders shall undertake a prima facie review of the borrower account within thirty days from such default ('Review Period'). During this Review Period of thirty days, lenders may decide on the resolution strategy, including the nature of the RP, the approach for implementation of the RP, etc. The lenders may also choose to initiate legal proceedings for insolvency or recovery." 98. On behalf of the Appellants, a reference is made to the 'Direction 10 of the RBI's Circular dated 07.06.2019', which reads as under: "In cases where RP is to be implemented, all lenders shall enter into an intercreditor agreement (ICA), during the above-said Review Period, to provide for ground rules for finalization and implementation of the RP in respect of borrowers with credit facilities from more than one lender. 5 The IC....
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....ny Third Party Security. For avoidance of doubt, nothing in this Clause shall restrict the right of Lenders to adjust or appropriate any margin monies, fixed deposits, cash collateral, bank guarantee / stand by letter of credit provided by any bank or financial institution, towards its Facility. For avoidance of doubt, it is clarified that in respect of ongoing legal proceedings / actions, the Lenders shall take necessary steps to not pursue such proceedings without adversely affecting its rights in respect of such proceedings. (b) transfer or assign their Facility to any person, save and except to a Lender that agrees to enter into a Deed of Accession (if it is not already a party to this Agreement) and be bound by the Resolution Plan. 13.2. The aforesaid standstill provision will be operative for an initial period of 30 (thirty) days from the commencement of the Review Period. In the event that the Lenders decide on implementation of a Resolution Plan as the resolution strategy in accordance with the Regulatory Framework, then the standstill provision shall extend during the implementation of the Resolution Plan (which is currently 180 (one hundred and eighty) days from the e....
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....in 'Full', prior to making any payments to the other 'Project Lenders'. 105. Added further, the Learned Counsel for the Appellant adverts to Clause 10.1 of the Trust and Retention Account Agreement dated 21.07.2017, in and by which, the 'Management of TRA', is entrusted to the Account Bank and the Account Bank is required to release the Funds / allow withdrawals from the 'TRA', to repay any 'Creditors' / for Operation of the Project, in tune with the instructions of Priority Lender or the Security Trustee (acting in accordance with the Inter Creditor Agreement), and that the Respondent is not responsible for releasing any amount from the 'TRA', etc. 106. As a matter of fact, the 'Account Bank', holds control over the Funds of the Respondent and is bound to act in accordance with the 'TRA Agreement', dated 21.07.2017 to which even the Financial Creditor and the Priority Lenders were 'Parties', along with the 'Other Lenders'. 107. The Learned Counsel for the Appellant, brings it to the notice of this 'Tribunal', that in the 'Minutes of Meeting of the Joint Lenders Forum', on 11.01.2022, it was recorded that in view of the issuance of 'Preliminary Default Notice', dated 29.10.2021,....
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....ired Thermal Power Plant, in Taran Tarn, Punjab, and for ease of convenience, the 'Lenders', has referred to supra or termed as 'Senior Lenders'. 113. It is relevantly pointed out that the 'Deutsche Bank AG', had extended a 'Loan to the 'Corporate Debtor', on condition that they will be accepted as a 'Priority Lender', with 'Priority Rights'. Besides this, it is brought to the fore that the 'DB International (Asia) Limited', through 'Debenture Trust Deed', dated 30.04.2017, had subscribed to the 'Bonds', issued by the 'Corporate Debtor', thereby, became a 'Priority Bond Holder', represented by 'IDBI Trusteeship Services Limited', as 'Bond Trustee'. 114. In terms of the 'Master Amendment Agreement', dated 21.07.2017, entered into between the 'Senior Lenders' and the 'Corporate Debtor', the Clause 2.1 of the Agreement points out that the Corporate Debtor, had undertaken to repay the Facilities, advanced by the 'Senior Lenders', in 78 Structured Quarterly Instalments, beginning from 31.10.2017 to 31.01.2037, as mentioned in the 'Repayment Schedule'. 115. Admittedly, a 'Loan Recall Notice', dated 17.12.2019, was issued by the '1st Respondent / Bank / Petitioner / Financial Creditor'....
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....aken away or overridden, by any 'Reserve Bank of India's Rule', etc. 121. It is to be remembered that the Corporate Debtor, cannot seek an 'umbrage', under the 'Inter Creditor Agreement', with a view to avoid, evade, circumvent and supplant its obligation(s), in terms of the 'Loan Facility Agreement'. Continuing further, the I & B Code, 2016 (vide Section 238 of the I & B Code, 2016), will have an 'overriding effect', in regard to anything inconsistent therewith contained in any other 'Law', for the time being in force. 122. By virtue of the Contract, the 1st Respondent / Bank / Financial Creditor, had executed an 'Inter Creditor Agreement', and it is well within its 'Rights', to take recourse to the available remedies in 'Law'. 123. The RBI's Circular dated 07.06.2019, cannot and shall not, in any manner come in the way of a 'Financial Creditor', to prefer a 'Petition' / an 'Application', as per Section 7 of the I & B Code, 2016. It cannot be forgotten that there was no determination on formulation of a 'Resolution Plan', and in any event, the stand still Clause, seen in Clause 13 (2) of the Inter Creditor Agreement dated 06.07.2019, cannot be pressed into service, after the 30....
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....rs' Claim, were fulfilled, at this juncture, it is relevantly pointed out that 'no valuable payment', was effected to the '1st Respondent / Bank / Financial / Petitioner', and other 'Senior Lenders'. 131. There is no simmering doubt that the 'Existence of Financial Debt' (vide Section 5(8) of the I & B Code, 2016), is over and above the threshold limit of more than Rs.1 Crore (as per Section 4 (1) of the Code). 132. In the present case, the 'Corporate Debtor' has not furnished any material evidence to suggest that, it will be in a position to 'repay the amounts', owed to the 'Lenders'. It cannot be forgotten that no endeavour was made to accomplish a 'Resolution Plan', although many deliberations and meetings, had taken place. Besides these, the 'Corporate Debtor', inspite of request made by the 'Lenders', had not opted to 'Improve' and 'Revise', the 'One Time Proposal', which is an unfavourable circumstance, as opined by this 'Tribunal'. 133. At this juncture, this 'Tribunal', worth recalls and recollects the Judgment of the Hon'ble Supreme Court dated 12.07.2022, in Vidarbha Industries Power Ltd. v. Axis Bank Limited (vide Civil Appeal No. 4633 of 2021), whereby and whereunder....