TaxTMI 
TaxTMI 
2024 (4) TMI 335
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....Agrawal, Mr. Rishabh Chauhan, for the Applicant in IA No. 2887-2888 of 2023 and 1163-1164 Mr. Vikas Mehta and Mr. Mayan Prasad, Ms. Anshula Grover, Advocates for JAMEWA JUDGMENT ASHOK BHUSHAN , J . These two Appeals have been filed against the order dated 13.01.2023 passed by the Adjudicating Authority (National Company Law Tribunal), Court-1, Mumbai Bench in I.A. No.3398 of 2022 (Implementation Application) and I.A. No.3508 of 2022 (Exclusion Application). The Adjudicating Authority by the impugned order has allowed both the applications. Aggrieved by which order these Appeals have been filed by the Appellants - State Bank of India, JC Flowers Asset Reconstruction Private Limited and Punjab National Bank, Lenders in the Monitoring Committee (hereinafter referred to as 'MC Lenders') challenging the order dated 13.01.2023. The Appellant's raises various issues pertaining to implementation of Resolution Plan of Jet Airways Limited, the first aviation company which has been resolved in this country under the Insolvency and Bankruptcy Code, 2016. The brief facts regarding approval of Resolution Plan of Jet Airways Limited and subsequent events and facts giving rise to this ....
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....ate (AOC) for the Corporate Debtor certifying that the Corporate Debtor was authorized to perform commercial air operations in India. After receipt of AOC on 20.05.2022, the SRA sent an email to the Resolution Professional informing that the SRA has fulfilled all condition precedents as required under the Resolution Plan. On 21.05.2022, the SRA filed upto date Status Report with the Adjudicating Authority intimating the Adjudicating Authority about fulfilment of condition precedent as per the approved Resolution Plan and 20.05.2022 being the Effective Date. Copy of the Status Report was also shared with the MC Lenders. On 21.05.2022, an email was sent to MC Lenders confirming the fulfilment of all condition precedents under the Resolution Plan, which paved way for implementation of approved Resolution Plan. The Resolution Professional informed the SRA on 20.05.2022 that the Monitoring Committee is examining documents submitted by the SRA to ascertain that all condition precedents under the approved Resolution Plan has been fulfilled or not. 5. On 27.05.2022 in compliance to Clause 6.4.12 of the plan, the SRA submitted Performance Bank Guarantee for an amount of Rs.87.50 Crore to....
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....shared with the SRA by the MC Lenders. MC Lenders opposed the application filed by the SRA contending that effective date is not achieved since condition precedents are not fulfilled by the SRA except the Air Operation Certificate and demerger of employees. 7. The Adjudicating Authority heard the elaborate submissions made by the SRA, MC Lenders and by order dated 13.01.2023 held that the SRA has completed all condition precedents provided in Clause 7.6.1 of the Resolution Plan. Following was held in I.A. No.3398 of 2023: "126. In the background of above facts and for the reasons stated above we hold that in addition to CPs (I) & (V) which are admittedly complied, remaining CPs (II), (III), (IV) are also duly complied. 127. Application bearing IA No. 3398 of 2022 is thus disposed of as Allowed in terms of prayer clause (a) thereof." 8. On I.A. No.3508 of 2023, the Adjudicating Authority granted exclusion of period for 180 days till 16.11.2022 for taking control of the Corporate Debtor. Following was held in Para 128: "128. Upon hearing the submission of the counsel for the Applicant in IA 3508 of 2022 and going through the pleadings and the circumst....
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....is Appeal "For Admission (After Notice)" on 11th April, 2023." 11. The Appellant aggrieved by the order dated 03.03.2023 passed by this Tribunal in these Appeals filed Civil Appeal No.3736-3737 of 2023 in the Hon'ble Supreme Court. In the Civil Appeals no interim order was passed by the Hon'ble Supreme Court. 12. In Company Appeal (AT) (Ins) No.129 & 130 of 2023, I.A. No.1975 of 2023 was filed by the Appellants and I.A. No. 2028-2029 of 2023 and I.A. No.2159-2160 was filed by the SRA. All three I.As. came to be heard by this Tribunal and by order dated 26.05.2023 this Tribunal allowed I.A. No.1975 of 2023. In Para 13 of the order, I.A. No.1975 of 2023 was allowed in following manner: "13. The IA No.1975 of 2023 filed by the MC Lenders, seeks permission for appointment of Board of Directors of the Corporate Debtor. The Application as noted above is not opposed by the SRA and it is stated that the appointment of Board of Directors to the Corporate Debtor is the step, which is essential for taking various regulatory actions as part of general corporate compliances under law. We allow the IA No.1975 of 2023 in terms of prayer (a)." 13. I.A. Nos.2028-2029 of 2023 were ....
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....nche under the Resolution Plan; (b) Allow the Successful RA to infuse INR 100 Crores as share application money in the designated bank account of the Corporate Debtor on or by 31 August 2023; (c) Allow the Successful RA to infuse the remaining sum of INR 100 Crores, as share application money in the designated bank account of the Corporate Debtor on or before 30 September 2023; (d) Pass necessary, specific and time bound directions to the MC Lenders, the Corporate Debtor, the concerned registrar of companies, the relevant stock exchanges, Ministry of Corporate Affairs, Government of India and all concerned government/ statutory authorities and departments to complete all statutory compliances and necessary steps including the issuance of new equity shares to the Successful RA as per the Resolution Plan by 15 October 2023; (e) Pass necessary directions that in case new equity shares of the Corporate Debtor are not issued to the Successful RA as per the Resolution Plan against for INR 350 Crores latest by 15 October 2023, direct the MC Lenders and the Corporate Debtor be directed to, jointly or severally, forthwith refund all amounts deposited/ inf....
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....als No. 3736-3737 of 2023, Civil Appeal No. 4131-4134 of 2023 and Civil Appeal No. 6427-6428 of 2023. The order passed by this Tribunal dated 28.08.2023 was modified in part. Hon'ble Supreme Court in its order dated 18.01.2024 noticed that Appeals against order dated 13.01.2023 are pending for consideration before NCLAT. The Hon'ble Supreme Court took the view that as per SBI Affidavit dated 16.08.2023, the Lenders were not to contest the issues pertaining to the grant or exclusion of time in terms of the order s passed by the NCLT on 13.01.2023 and 26.05.2023 as well as on compliance of the conditions precedent, in event the SRA infused an amount of Rs.350 crores. The Hon'ble Supreme Court took the view that order of this Tribunal dated 28.08.2023 permitting adjustment of Performance Bank Guarantee was not as per terms envisaged in Affidavit dated 16.08.223. Hon'ble Supreme Court in Paras 25, 26, 27 and 28 issued following directions: "25. The lenders have argued in the appeals that there has been a failure on the part of the SRA to comply with the conditions precedent. If the SRA were to comply with the terms as envisaged in SBI's affidavit dated 16 August 2023, evidentl....
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....Shri Raghav Chadha, learned counsel has appeared for Respondent No.2. We have also heard Shri Vikas Mehta, learned counsel appearing for JAMEWA and Shri Pawan Shree Agrawal, learned counsel appearing for association of aggrieved workmen of Jet Airways Ltd. 21. Shri N. Venkataraman, learned senior counsel for the Appellant commenced his submission relying on the order of the Hon'ble Supreme Court dated 18.01.2024 passed in Civil Appeal No.6427-6428 of 2023 and submitted that the SRA having not infused amount of Rs.150 Crores which was permitted to be infused by 31.01.2024, the entire Resolution Plan has failed and cannot be implemented. Shri Venkataraman submit that in pursuance of the direction of the Hon'ble Supreme Court dated 18.01.2024, in this appeal issue has arisen as to what is the consequence under the Resolution Plan in view of non-deposit of Rs.150 Crores by the SRA. Lenders should now be allowed to invoke PBG of Rs.150 Crores in view of non-deposit of amount and whether all conditions of the plan have been complied by the SRA consequent thereof. It is submitted that having failed to infuse funds as per order of the Hon'ble Supreme Court dated 18.01.2024, the conseque....
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....the relevant authorities for renewal of rights and benefits. The Adjudicating Authority in the impugned order proceeded on the incorrect basis that in event slots of Delhi and Mumbai have been granted by the competent authority, however, it failed to consider that said was subject to clearance of airport dues by the SRA and same has not been cleared till date. Requirement of condition precedent regarding International Traffic Rights clearance has also not been met. The Adjudicating Authority returned finding that said condition cannot be satisfied upfront since National Civil Aviation Policy cannot be complied at this stage and can only be achieved once the SRA recommences its business. It is submitted that the NCLT modified the Resolution Plan by making this condition subsequent condition, which is not permissible. The SRA has to fulfil all condition precedents before commencement of operation. It is submitted that after considering the clause of condition precedents, the CoC has voted in favour of the plan. It is further submitted that the way forward suggested by the SRA during course of submissions are not acceptable. Under the implementation Clause 7.7.1, taking over the Corpo....
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....the SRA has not completed the condition precedents inspite of several letters and requests made to the MC Lenders. It was jointly decided in Joint Lenders Meeting (JLM) held on 29.09.2022 that application shall be filed by the SRA to obtain direction of the Adjudicating Authority. Although it was decided in the JLM that SRA will file application before the Adjudicating Authority, when SRA filed applications for implementation of plan and exclusion of time, the applications were opposed tooth and nail by MC Lenders. MC Lenders have not permitted the SRA to implement the plan by adopting obstructionist attitude. It is submitted that the Adjudicating Authority after hearing the parties elaborately has returned the findings that all condition precedents were fulfilled by the SRA and inspite of the order passed by the Adjudicating Authority dated 13.01.2023, the MC Lenders did not relent nor permitted the SRA to implement the plan. Challenging the order dated 13.01.2023 these appeals Company Appeal (AT) (Ins.) No.129 & 130 of 2023 have been filed. Even when this Tribunal by order dated 03.03.2023 declined the interim prayer prayed by the Appellants to stay the order dated 13.01.2023, pl....
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....correctly passed or not. The SRA's categorical case was condition precedents were fulfilled on 20.05.2022 on which date DGCA issued Air Operation Certificate. SRA's case throughout have been that 20.05.2022 is the effective date on which date all condition precedents were achieved. It is submitted that the submission of Shri N. Venkataraman that as on date there is no Air Operation Certificate, hence plan cannot be implemented is incorrect. The correctness of the order has to be seen on the date when order was passed and Air Operation Certificate was valid on the date when order was passed and it was the Appellants - MC Lenders who did not permit the SRA to implement the plan and to start commercial operations. The Appellants cannot be permitted to take benefit of their own wrongs and misdeeds. It was only by carrying the commercial business and earning revenue by said operations SRA has to comply with all terms and conditions of the Resolution Plan. The mere fact that Air Operation Certificate granted on 20.05.2022 has come to an end cannot lead to conclusion that SRA has failed to achieve condition precedent on 20.05.2022. It is submitted that with regard to condition regarding A....
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....proved for Delhi and Mumbai and CIRP dues shall be paid as per IBC waterfall mechanism in priority and before start of commercial operation after closing date. The fulfilment of this condition has been challenged by MC Lenders when SRA has received slot approval for all slots listed in the Resolution Plan and business plan. The contention raised by the Appellants is wholly fallacious and incorrect. In so far as International Traffic Rights Clearance, Mr. Dutta submits that International Traffic Rights Clearance as per National Civil Aviation Policy, 2016 can be granted only after deployment of 20 aircraft or 20% of total capacity whichever is higher for domestic operations for clearance is achieved. On achievement of effective date, International Traffic Rights Clearance is not applicable to be obtained by SRA and same shall be obtained as per applicable laws only after the SRA recommences its business. Learned counsel for the Respondent further submits that the issue regarding Airport Charges is incorrect. In terms of the Resolution Plan, the SRA has to utilise the positive cash balance of the Corporate Debtor for meeting the CIRP Cost which specifically include the airport dues. ....
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.... support of Respondent No.1. It is submitted that this Court has always saved companies even if there is any default in the compliance of time schedule by the Resolution Applicant. He submits that the rights of the parties have to be decided on the date when issues arose between the parties. The subsequent development which took place during the pendency of the litigation can at best be relevant for moulding the reliefs. Section 33(3) is not applicable since no application has been made. Right of relief has to be looked into on the date suit is filed. 26. We have heard learned counsel for the parties and perused the record. From the submissions of the Counsel for the parties and material of record, following are the issues which arise for consideration in these Appeals:- (i) Whether on 20.05.2022 the Successful Resolution Applicant has completed all the condition precedents provided in Clause 7.6.1 of the Resolution Plan? (ii) Whether condition precedents as under Clause 7.6.1 of the Resolution Plan were not achieved by the Successful Resolution Applicant as contended by the Appellant? (iii) Whether the order dated 13.01.2023 passed by the Adjudicating....
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....any other relevant Government Authority and grant of all other mandatory approvals to the Corporate Debtor to enable it to recommence flying operations (including commercial/cargo operations) and related on-ground services. (b) Submission and approval of the Business Plan to DCGA & MoCA - The Business Plan of the Resolution Applicant shall have been submitted after the Approval Date to the DGCA and MoCA for their review, and approval. The Resolution Applicant agrees to modify its business plan to incorporate all reasonable changes required by the DGCA/MoCA, which otherwise does not make the business unviable for the Resolution Applicant. (c) Slots Allotment Approval- The DGCA and MoCA shall have approved the reinstatement of all the suspended slots (including the bilateral rights and traffic rights) back to Jet Airways/Corporate Debtor. The slots (along with related bilateral rights and traffic rights) can be allotted to the Corporate Debtor gradually as per its Business Plan with immediate slots allotment approval (along with related bilateral rights and traffic rights) for sectors on which Jet 2.0 proposes to recommence operations after the Effective Date. ....
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....his certificate certifies that M/s. JET Airways India Limited is authorised to perform commercial air operations as defined in the attached operation specification in accordance with the operation manual and rule 134 of the Air Craft Rule, 1937". 30. On 21st May, 2022, SRA e-filed up to date status report before the Adjudicating Authority intimating the Adjudicating Authority about the completion of the conditions precedent under the approved resolution plan and 20th May, 2022 being the effective date. It is useful to notice paragraph 3 to 5 of the status report dated 21st May, 2022 which is as follows: "3. As per Clause 7.6.1. of the Resolution Plan, to operationalise the business of the Corporate Debtor, following conditions precedent were required to be fulfilled ("Conditions Precedent"): i. Validation of Air Operator Certificate ("AOC") of the Corporate Debtor by the Directorate General of Civil Aviation ("DGCA") and the Ministry of Civil Aviation ("MoCA") ii. Submission of the Business Plan to DGCA & MoCA iii. Slots allotment approval iv. International Traffic Rights clearance v. Approval of Demerger of ground handling b....
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....the Resolution Plan and as approved in the Approval Order, as and when the Corporate Debtor has the aircrafts, attendant wherewithal, and logistical support in place, which according to the Resolution Plan would be in phases, with no deviation whatsoever; b. procurement of the International Traffic Rights clearance for the Corporate Debtor, inter alia, by complying with the legal/regulatory requirements for the said clearance in such time as required to adhere to the Business Plan of the Applicant's Resolution Plan, with no deviation whatsoever; and c. implementation of the Resolution Plan including (i) pay-outs towards CIRP costs, airport and parking charges, various creditors (ii) providing for any shortfall in meeting its financial obligations towards various stakeholders; and (iii) making necessary funds available to the stakeholders (including the Financial Creditors) in such manner as is acceptable to the Financial Creditors. d. indemnifying and making good any and all direct, indirect or consequential claims, losses, damages, costs, expenses or liabilities incurred or likely to be incurred by the Financial Creditors and the former Resolution Pr....
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....l; save and except as set out expressly in this Undertaking, - (as modified by this Unde1taking} read with Resolution Plan Approval Order shall continue to apply in fit!! force effect without any changes thereto. 15. The Resolution Applicant understands and acknowledges that the foregoing understanding is subject to specific consent and approval by the Financial Creditors of the Corporate Debtor and the NCLT. We further acknowledge and agree that the erstwhile Committee of Creditors! Assenting Financial Creditors reserves the right to negotiate (if required), by itself or through its advisors, te1ms of this Undertaking as submitted by the Resolution Applicant and any decision taken by the Assenting Financial Creditors shall be binding. [Proposed Undertaking at Annexure 0 (Colly.) of the Application Vol. III at pg. 411 & 412]" 32. Several monitoring committee meetings as well as joint lenders meetings were held. In the Monitoring Committee Meeting, it was noted that there is divergent view on the status of the conditions precedent completion. Several joint lenders meetings were also held in which issue was deliberated by the lenders, a joint lender meeting was h....
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....2. We note that the Hon'ble NCLAT in its order dated 21.10.2022, in an appeal filed by JAMEWA and after hearing the parties and considering the JAMEWA's objections on completion of CPs has already held that the SRA has complied all the necessary CPs to the satisfaction of MC. It would not be out of place to reiterate that the MC lenders took out IA 4771 of 2022 seeking clarification of the Hon'ble NCLAT's order observing completion of all necessary CPs to the satisfaction of the MC which was rejected vide order dated 20.12.2022. ......" 34. Learned Counsel for the Appellants in these Appeals have questioned the above observations of the Adjudicating Authority relying on the order of this Appellate Tribunal which submission we have already noticed in the order dated 03rd March, 2023. We thus first need to consider the nature of observations made by this Tribunal in order dated 21.10.2022 and the clarification order passed on 20th December, 2022. The Order dated 21.10.2022 was passed by this Tribunal in an appeal which was filed by the Jet Aircraft Maintenance Engineers Welfare Association and Ors. challenging the plan approval order dated 22nd June, 2021.....
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....ission of the Appellant that the resolution plan ought to have rejected in view of the condition precedent contained in the resolution plan. The Resolution Applicant has also completed all necessary condition precedents to the satisfaction of the Monitoring Committee. We, thus, are of the view that the judgment of Hon'ble Supreme Court in "Ebix Singapore" does not help the Appellant to support his contention that the Resolution Plan is liable to be rejected due to condition precedents." 36. We may also notice the clarification order passed by this Tribunal dated 20th December, 2022 in the application filed by the MC Lender which order is as follows: "I.A. No. 4771 of 2022:- This application has been filed by the Committee of Creditors praying for clarification of the observations made in paragraph 109 of the judgment dated 21.10.2022. We had framed the questions which fell for consideration in the group of appeals and paragraph 108 & 109 are the paragraphs in which the question no. 9 was answered. Our observations in paragraph 108 & 109 were only for the purposes of answering the question framed as question no. 9 and the submissions which are advan....
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....demerger of ground handling business into AGSL. In this background we have thus considered if the remaining three CPs are duly complied with by the applicant or otherwise." 39. The Adjudicating Authority thereafter proceeded to examine other three conditions precedent on which MC Lender had raised objection regarding fulfilment. With regard to submission of approval of business plan by DGCA and MoCA, in paragraph 123, the Adjudicating Authority recorded a finding that the said condition precedent satisfactorily complied with. In para 123, following findings have been returned: "123. As regards to CP No.2 i.e. Submission and approval of business plan to DGCA and MoCA: The business plan was submitted to above Authorities to fulfil compliance of DGCA's Show Cause Notice (SCN) to CD of April 2019. SCN states that Air Operator Certificate will be issued after MoCA approves the business plan. Thus, with issuance of Air Operator Certificate, it is implied that the business plan has been approved. Even otherwise, guidelines for issuance of Air Operator Certificate being CAP 3100 clearly states that the DGCA will review the detailed business plan of the Applicant be....
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....ipulates that minimum twenty air crafts are required to be deployed before applying for such clearance. In view of this, we find that this condition cannot be satisfied upfront and needs to be satisfied in compliance with applicable laws i.e. after the SRA has twenty air crafts in operation which can only be achieved once the operation is re-commenced successfully. Accordingly, this condition can only be fulfilled after the SRA/ Applicants re-commences its business and not prior to its commencement. It goes without saying that plan approved by this Tribunal has to be implemented without any modification much less than on satisfaction of any other undertaking and thus, the effective date and completion date of condition precedent under the plan shall have to be read as 20th May, 2022." 42. After recording the above findings, in para 126-127, the Adjudicating Authority directed as follows: "126. In the background of above facts and for the reasons stated above we hold that in addition to CPs (I) & (V) which are admittedly complied, remaining CPs (II), (III), (IV) are also duly complied. 127. Application bearing IA No. 3398 of 2022 is thus disposed of as ....
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....ation in the DGCA. It is useful to extract the letter dated 09.05.2022 which is as follows: "To M/s. Jet Airways India Limited [Kind Attn:- Capt. Priyapal Singh, Accountable Manager] Global One, 3rd Floor, 252 LBS Marg, Kurla (West), Mumbai-400070 Subject: Request for pre-application phase meeting for re-certification of Jet Airways and renewal of Air Operator Certificate-reg. Sir, I am directed to refer to DGCA's letter no. AV.14015/03/1992-AT-I dated 27.08.2021 forwarding therewith your letter no. JET2.0/AM/R/002 dated 05.08.2021 inter-alia enclosing a copy of comprehensive revival plan of the company. The Ministry of Civil Aviation (MoCA) acknowledges the submission of said comprehensive revival plan of the company for the proposed commencement of scheduled air operations wherein appropriate decisions are taken by the respective competent authorities as per the extant rules and regulations. Further, operational plan submitted by the Company for recertification process of Air Operator Certificate (AOC) is under examination in the Directorate General of Civil Aviation (DGCA). 2. Meanwhile, MoCA vide l....
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....udicating Authority which has upheld the fulfilment of the above conditions submits that the Adjudicating Authority has wrongly interpreted the plan approval order dated 22nd June, 2021 to hold that this condition was substantially diluted by the approval order. It is submitted that the Adjudicating Authority while hearing the plan merely did not allow the prayer for automatic reinstatement of the slots to the Corporate Debtor as a matter of right and directed the SRA to approach the relevant authority for renewals of rights and benefits. It is submitted that the Adjudicating Authority also proceeded on the incorrect basis that slots in Delhi and Mumbai has been allotted to SRA for immediate commencement of the operation however it failed to consider that slots are allotted subject to clearance of airport dues which are the responsibility of the SRA and same has not been secured till date. It is submitted that SRA does not have a single slot for operation and condition remained unfulfilled. Learned Counsel for the SRA has submitted that at the time of hearing of plan approval application, the Adjudicating Authority has directed the DGCA/MoCA to file their response, DGCA and MoCA ob....
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....ts secured by the Corporate Debtor already are noted at page 987 of the Volume 4 of the Appeal which indicates that 48 slots have been acquired by SRA for recommencement of Corporate Debtor's Operation. When the necessary slots as per business plan were acquired by SRA, we fail to see that on what basis the Appellant is contending that conditions precedent as under clause 7.6.1(c) was not fulfilled. The Adjudicating Authority in the impugned order after considering all relevant facts and circumstances and considering the submission of the parties, has returned its finding in para 124 that slot for which SRA complied were granted to them by the concerned competent authority including the slots in Delhi and Mumbai. Payment of Airport Charges 51. One of the submissions raised by Shree N. Venkatraman as noted above is that SRA having not paid Airport Charges, slot allotment cannot be said to be complied. It is submitted that it was the obligation of SRA to pay Airport Charges which having not been made, the SRA has not complied its obligation under the plan. Mr. Krishnendu Datta refuting the submissions of Learned Sr. Counsel for the Appellant submits that Airport Charges have to....
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.... by the SRA as noted above, non-payment of airport charges upfront by SRA cannot be said to be a reason to not accept the fulfilment of condition of slot allotment. The payment of Airport Charges has to be made as per the Resolution Plan when the implementation of plans commenced as per the Resolution Plan. We thus do not find any substance in the submission of Learned Counsel for the Appellant that allotment of slot is not completed since Airport Charges have not been paid by the SRA. 55. With regard to submission of the Appellant that old dues of Airport Charges having not been settled, the Adjudicating Authority has rightly observed that settling of old dues cannot be conceded as non-allotment of slots. We thus fully concur with the finding of the Adjudicating Authority that conditions precedent under clause 7.6.1(c) were fulfilled. International Traffic Rights Clearance 56. Clause 7.6.1(d) relates to international traffic rights clearance. Clause 7.6.1(d) is as follows: "(d) International Traffic Rights Clearance - The Corporate Debtor shall have received the International Traffic Rights Clearance in compliance with Applicable Laws." 57. Learned Counsel for....
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....ploys 20 aircraft or 20% of total capacity (in term of average number of seats on all departures put together), whichever is higher for domestic operations. For this purpose, the published schedule of airlines will be the basis for monitoring, assuming that one aircraft would have six departures per day. Further, Para 2 of AIC 10/2022 on the Guidelines for Grant of Permission to Indian Air Transport Undertakings for Operation of Scheduled International Air Transport Services issued by the Directorate General of Civil Aviation dated 19.04.2022 prescribing the Eligibility Criteria may also be referred. The Application of the Jet Airways, if it has a valid AOC and fulfils the above criteria, will be examined for international scheduled operations at appropriate time. This issues with the approval of the Competent Authority. Digitally Signed by Anup Pant Date: 10-05-2022 10:35:44 (Anup Pant) Under Secretary to the Government of India" 58. As per the business plan submitted by SRA, SRA had to commence its operation with only six narrow air crafts and the SRA could obtain the international traffic rights clearance only after deploy....
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....reme Court laid down that the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. In para 11 of the Judgment, following was held: "11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by ....
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....Appellant that due to lapse of air operation certificate during pendency of these Appeals before this Tribunal, it can be held that conditions precedent as required under 7.6.1.(a) was not fulfilled. We thus reject the submission of the Appellant that condition as required by 7.6.1(a) was not fulfilled. 63. In view of the foregoing discussions and conclusions, we are of the view that there is no infirmity in the order dated 13th January, 2023 passed by the Adjudicating Authority holding that conditions precedent for commencement of the air operation by the SRA were fulfilled. 64. We thus do not find any infirmity in the order dated 13th January, 2023 warranting any interference in these Appeals. Question Nos. v, vi and vii:- 65. The above questions are interrelated, hence are being considered together. 66. First reliance has been placed by the learned Counsel for the Appellant on the order of the Hon'ble Supreme Court dated 18.01.2024 passed in Civil Appeal Nos.6427-6428 of 2023. The submissions of the Appellant on order dated 18.01.2024 have already been noticed by us in preceding paragraphs. We need to notice the judgment of the Hon'ble Supreme Court dated 18.01.20....
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....idavit dated 16.08.2023 undertook a stand that MC Lenders views are constructive and are positive steps towards the revival of the Corporate Debtor. IA Nos.3801-3802 of 2023 was filed by the SRA, where the Applicants made following prayers: "(a) Direct the MC Lenders to adjust or otherwise apportion the PBG of INR 150 Crores as per the terms of the Resolution Plan towards the part payment of the first tranche under the Resolution Plan; (b) Allow the Successful RA to infuse INR 100 Crores as share application money in the designated bank account of the Corporate Debtor on or by 31 August 2023; ( c) Allow the Successful RA to infuse the remaining sum of INR 100 Crores, as share application money in the designated bank account of the Corporate Debtor on or before 30 September 2023; (d) Pass necessary, specific and time bound directions to the MC Lenders, the Corporate Debtor, the concerned registrar of companies, the relevant stock exchanges, Ministry of Corporate Affairs, Government of India and all concerned government/ statutory authorities and departments to complete all statutory compliances and necessary steps including the issuance of new equ....
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.... for payment of INR 100 crores by 31.08.2023 and INR 100 crores by 30.09.2023 were also allowed. Operative portion of the order dated 28.08.2023 is in paragraph 31, which is as follows: "31. In view of the fore-going discussion, we partly allow I.A. No. 3801-3802 of 2023 in so far as prayer (a), (b) and (c) are concerned. Let I.A. No. 3801- 3802 of 2023 be listed on 04th October, 2023 for further consideration." 70. Civil Appeal Nos.6427 and 6428 of 2023 were filed by the Appellant, challenging the order dated 28.08.2023 passed by this Tribunal, which Appeal has been decided by the Hon'ble Supreme Court vide its order dated 18.01.2024 along with Civil Appeal Nos.4131-4134 of 2023 and 3736-3737 of 2023. The Hon'ble Supreme Court vide its order dated 18.01.2024 held that order of this Tribunal dated 28.08.2023 allowing prayer (a) of the SRA, permitting adjustment of PBG of INR 150 crores was not in accordance with the affidavit of the Lenders dated 18.08.2023, where Lenders have required infusion of INR 350 Crores by the SRA. The arguments advanced on behalf of the learned Counsel for the Appellant, challenging the order aforesaid has been noticed by Hon'ble Supreme Court....
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....ply with the liabilities in regard to the payment to the employees in terms of the order of the NCLAT dated 21 October 2022 which has been upheld by this Court on 30 January 2023." 72. The Hon'ble Supreme Court in paragraph-21 took the view that order of this Tribunal allowing plea of SRA for adjustment and consequential release of the PBG at the interlocutory stage, is not in accordance with the tenor of paragraph-8 of the affidavit, which was filed by the SRA. The said observations have been clearly made in paragraph 21 of the judgment, is as follows: "21 Conditional on compliance with the three conditions set out above, SBI stated that it would be willing to withdraw both the company appeals which were pending before the NCLAT as well as the Civil Appeals which were pending before this Court, details of which were set out in the affidavit. The offer which was made by SBI on behalf of the lenders had to be complied with as it stood in the event that the SRA sought the benefit of the offer. According to the SRA, the PBG was liable to be released on adjustment in terms of the Resolution Plan. This is a matter which would have to await an adjudication by NCLAT in the pen....
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....e of Rs 150 crores against the PBG shall stand substituted by the above directions." 74. From the perusal of the judgment of the Hon'ble Supreme Court as noticed above, it is clear that direction issued by Hon'ble Supreme Court to deposit the amount of INR 150 crores peremptorily by on or before 31.01.2024 was in reference to the affidavit dated 16.08.2023 by which the Appellant asked for infusion of INR 350 crores. Paragraph 26 of the judgment, contains a direction of the Hon'ble Supreme Court, by which order dated 28.08.2023 passed by this Tribunal has been modified in part. The Hon'ble Supreme Court clearly held "the permission which was granted to the SRA to adjust the last tranche of Rs.150 crores against the PBG shall stand substituted by the above direction". Meaning thereby, the order of this Tribunal to adjust the PBG of INR 150 crores was substituted by direction of Hon'ble Supreme Court that the said amount peremptorily be deposited on or before 31.01.2024 by SRA. 75. By order of the Hon'ble Supreme Court dated 18.01.2024, it is made clear that Hon'ble Supreme Court modified only part of the order passed by this Tribunal dated 28.08.2023, by which this Tribunal per....
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....t with the conditions precedent is pending before the NCLAT. Hence, the observations in the present judgment are confined to the arrangement which must operate during the pendency of the appeal without this Court expressing a final view on the merits of the appeal, which will fall for consideration before the NCLAT." 78. Paragraph 19 of the judgment of the Hon'ble Supreme Court, makes it clear that the Hon'ble Supreme Court has not expressed any view on the merits of the Appeal, which was yet to be considered by this Tribunal and the question as to whether the SRA was compliant with the conditions precedent has to be decided in this Appeal. We having held that directions of the Hon'ble Supreme Court vide order dated 18.01.2024 are confined to the offer, which was submitted by the Appellant by affidavit dated 16.08.2023, non-fulfillment of the conditions by SRA by non-deposit of INR 150 crores by 31.01.2024 is that the SRA shall become disentitled to receive the offer given by the Appellant by affidavit that they will withdraw the Appeal in this Tribunal and the Hon'ble Supreme Court. The result is that the Appeals pending in this Tribunal has to be heard and decided on merits, S....
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....idavit dated 16.08.2023 Question No. iv : The Successful Resolution Applicant having not been able to infuse funds by 31.01.2024 as directed by Hon'ble Supreme Court vide its judgment dated 18.01.2024, it cannot be held that Resolution Plan has failed and cannot be implemented by the SRA. Question No. vii : No grounds have been made out to direct the liquidation of Corporate Debtor under Section 33, sub-section (3) in these Appeals. Way Forward 82. This brings us now to Question No. viii delineated above. In the foregoing discussions, we have held that Adjudicating Authority has correctly by its impugned order dated 13.01.2023 held that condition precedents were achieved on 20.05.2022 by SRA. These Appeals has been filed by Lenders, challenging the aforesaid order dated 13.01.2023. We having upheld the order dated 13.01.2023, whether the Appeals have to be closed with the aforesaid order or there is requirement of consideration of any subsequent event or facts is a question, which has been addressed before us, which needs to be answered. 83. As observed above, the right of parties with regard to lis raised in a proceeding has to be decided on the date of ....
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....undamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasio....
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....ure of a re-hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against." 86. As noted above, the lis between the parties, i.e. Lenders and the SRA being the implementation of the Resolution Plan, different steps and compliances of various clauses of Resolution Plan, time elapsed during litigation between the parties and time lapsed during the proceeding are relevant to be considered to find out the way forward. 87. The proposition laid down by the Hon'ble Supreme Court in Pasupuleti Venkateswarlu case was again reiterated by the Hon'ble Supreme Court in Om Prakash Gupta vs. Ranbir B. Goyal - (2002) 2 SCC 256. In paragraph 11 of the judgment, following has been laid down by Hon'ble Supreme Court: 11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. How....
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....s own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtor's assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends. 89. To the same effect is the subsequent judgment of the Hon'ble Supreme Court in (2020) 15 SCC 1 - Babulal Vardharji Gurjar vs. Veer Gurjar Aluminium Industries Pvt. Ltd. & Anr....
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....construction Pvt. Ltd. vs. SS Natural Resources Pvt. Ltd. & Anr. - Company Appeal (AT) (Insolvency) No.396 of 2022 decided on 19.04.2022, in which case the Resolution Plan was approved and order approving the Resolution Plan came to be challenged before the NCLAT, which Appeal was dismissed on 04.03.2021. After dismissal of the Appeal, NCLT directed the Monitoring Agency to start taking steps for implementation of the Resolution Plan. The submission raised on behalf of one of the Financial Creditor was that Corporate Debtor should be sent to liquidation, since the payment as per Plan has not been made to the Financial Creditor. The Adjudicating Authority had rejected the submission of the Financial Creditor that Corporate Debtor had to be sent to liquidation. The Adjudicating Authority further granted five days' time to the SRA to transfer the amount in the Corporate Debtor's account, which order of the Adjudicating Authority came to be challenged by the Financial Creditor in the Appeal. The Appeal was dismissed by this Tribunal by upholding the order of the Adjudicating Authority. This Tribunal observed that even if certain delay has taken place in implementation of the Resolution....
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....e SRA to deposit the amount in the Account of the Corporate Debtor which Corporate Debtor did as stated before us. The implementation of the Resolution Plan although certain delay had occurred cannot be interfered with in exercise of our Appellate Jurisdiction. We are thus of the view that there is no merit in the Appeal, the Appeal is dismissed." 91. The learned Counsel for the Appellant has also relied on the judgment of the Hon'ble Supreme Court dated 18.01.2024. 92. We, thus, are of clear opinion that subsequent events specially, the time elapsed during pendency of the litigation has to be taken note of and appropriate remedial actions should be taken as noted above. The object of the IBC is to revive the Corporate Debtor. A Resolution Plan, which has been approved by the Adjudicating Authority and have been affirmed upto Hon'ble Supreme Court, which is binding on all, including the Lenders and SRA, every steps have to be taken by all concerned to ensure that Plan is implemented. 93. The implementation of Plan and revival of the business of the Corporate Debtor does not only generate revenue for making of the payments as contemplated in Resolution Plan, but is importan....
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....pt of approval from the Competition Commission of India under the provisions of the Competition Act, 2002 read with the provision of the BIC. Before approval of Resolution Plan by CoC 2. Declaration of the Successful Resolution Applicant and Receipt of LOI from the CoC X 3. Unconditional acceptance of the LOI X + 3 4. Issuance of Performance Security Bank Guarantee X + 7 5. Finalization of the members of the Monitoring Committee Between X and Approval Date 6. Approval Date Y 7. Monitoring Committee to take control as per Clause 7.8.2 Y 8. Fulfillment of Conditions Precedent as per Clause 7.6.1 After 9. Filing of the certified copy of the Order of Approval received from Adjudicating Authority sanctioning the Resolution Plan with the relevant Government Authorities/ Stock Exchange/ Departments. Y + 10 10. Effective Date Z 11. Infusion of Rs.350 Crores in the Corporate Debtor Z + 150 12. Setting up the Contingency Fund Z + 170 13. Cancellation of shares (excluding Public Shares) as per Clause 7.4.1 (c) Z + 170 14. Reconstitution of Share Capital as per Clause 7.4.....
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.... 7. AOP 8. Closing date. 9. Role of Actions of MC Lenders. Exclusion of Time 98. As noted above, the Effective Date was achieved by SRA on 20.05.2022 by completing all condition precedent as per Resolution Plan under Clause 7.6.1. From the Effective Date, within 180 days, the Resolution Applicant was required to make first tranche payment of INR 350 crores. Exclusion of time, subsequent to 20.05.2022 was granted by Adjudicating Authority vide order dated 13.01.2023 and thereafter by this Tribunal in Appeal by order dated 26.05.2023. As per the order passed by this Tribunal on 26.05.2023, the payment of first tranche amount by SRA was to be completed by 31.08.2023. On an Application filed by SRA, time for further payment of INR 100 crores was extended till 30.09.2023. As noted above, against the order dated 03.03.2023, 26.05.2023 and 28.08.2023 passed by this Tribunal, MC Lenders, i.e., Appellant filed Appeals in Hon'ble Supreme Court and have been challenging the orders passed by this Tribunal as well as the claim of the SRA that they have completed all condition precedents on 20.05.2022. Even during the final hearing in these Appeals, which took pla....
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....the condition precedents, SRA sent reminders to Lenders, seeking approval and signing of transaction document for the creation of security, the Lenders did not respond nor provided their response to the transaction document. On 3.10.2023, SRA again sent email to MC Lenders. MC Lenders have recently on 19.01.2024 engaged one valuer - ValuStart to conduct valuation of the properties. 102. Shri N. Venkataraman, learned ASG appearing for the Lenders submitted that SRA has not provided necessary expenses for charge creation, due to which process has been delayed. The learned Counsel for the SRA submits that SRA was always ready and still ready to bear all expenses for charge creation. 103. We notice that in the Resolution Plan itself Clause 6.4.4 provided that "Security will be created at the cost of Resolution Applicant". Thus, it is Resolution Applicant, who is to bear all costs for charge creation. The mortgage/ charge over Dubai properties is essential condition of the Plan for proceeding further. We are of the view that ends of justice will be met by issuing appropriate direction to the Lenders to take all steps for creation of charge and direction to the SRA to bear all expe....
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....; Mortgage over Dubai Property No.3 valued at more than Rs.50 Crores Effective Date earlier 107. The above Clause clearly indicates that in the first tranche payment, under the heading "Date of Release of Security", the expression used is 'PBG adjusted'. Thus, Resolution Plan clearly contemplated that in the first tranche payment INR 150 crores PBG is to be adjusted, which was a Clause of the Resolution Plan duly approved by the Lenders. We, thus, are of the view that SRA having already paid INR 200 crores, the amount of INR 150 crores, which is lying with the MC Lenders as PBG is to be adjusted in the first tranche payment for completing the payment of INR 150 crores. Thus, it is held that SRA has completed the first tranche payment of INR 350 crores as per the Resolution Plan. Share Re-constitution 108. Under the Resolution Plan, after payment of first tranche and creation of security, the shares have to be issued in the name of SRA. The Share Re-constitution has also to be completed as per the Resolution Plan by all concerned. First Tranche Payment to Creditors. 109. After infusion of INR 350 crores by the SRA as noted above, the Resolution P....
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....arned Counsel for the Applicants have referred to order of this Tribunal dated 21.10.2022 and the necessary directions issued therein. We may extract the necessary directions issued by this Tribunal in its operative portion of the order, which is as follows: "(I) The Appeal(s) of workmen and employees being Company Appeal (AT) (Insolvency) Nos. 643 of 2021, 752 of 2021, 801 of 2021, 915 of 2021, 771 of 2022 are partly allowed with following directions: (a) Successful Resolution Applicant is directed to make payment of unpaid provident fund to the workmen till date of insolvency commencement, after deducting the amount already paid towards provident fund in the Resolution Plan to the workmen. (b) The workmen are also entitled for payment of their gratuity dues as on insolvency commencement date, after adjusting any amount towards gratuity paid under the Resolution Plan. It is made clear that entitlement of those employees and workmen, who were demerged into AGSL shall not be there, since demerger has not been treated as termination of their services. (c) The employees are also entitled for the payment of their full provident fund, unpaid up to the....
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....and employees is the commencement of implementation of the Resolution Plan. We have already taken note that first tranche payment of INR 350 crores having been completed and we have already indicated that the Chairman of Monitoring Committee shall make disbursement as per the Plan to the workmen and employees, no further directions are required in the Applications. Air Operation Certificate 116. We have noticed that Air Operation Certificate was granted to the Corporate Debtor on 20.05.2020 for a period of one year. The Corporate Debtor as per the Air Operation Certificate could very well have commenced the operations after completing the other conditions in the Plan. However, the SRA could not commence the operation due to the stand taken by the Lenders that SRA has not completed the condition precedent and inspite of the order passed by the Adjudicating Authority on 13.01.2023, declaring that SRA has completed the condition precedents, no steps were taken by the Lenders to proceed with the implementation of the Plan, rather Lender have filed Appeals in this Tribunal challenging the order dated 13.01.2023. Air Operation Certificate was also extended and extended period also ....
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....023. Role and actions of MC Lenders 119. After having noted the various contentions of both the parties and after going through sequence of events and happenings, which took place, we feel necessary to make our comments on the role and actions of MC Lenders. 120. Under the IBC and Regulations framed thereunder, the whole process for approval of Resolution Plan and its implementation has been laid down. In the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 ("CIRP Regulations, 2016"), there have been amendment in Regulation 36B, which has been inserted with effect from 24.01.2019, which now provide for performance security. Regulation 36B (4A) is as follows: "36B(4A) The request for resolution plans shall require the resolution applicant, in case its resolution plan is approved under sub-section (4) of section 30, to provide a performance security within the time specified therein and such performance security shall stand forfeited if the resolution applicant of such plan, after its approval by the Adjudicating Authority, fails to implement or contributes to the failure of implementation of that plan ....
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....istence of Lenders for execution of another Undertaking. The issue of Draft Undertaking was repeatedly raised by the Lenders in the joint Meeting of MC Lenders, which is matter of record. 123. We may further notice provision of Regulation 39 (9) of the CIRP Regulations, which provides as follows: "39[(9) A creditor, who is aggrieved by non-implementation of a resolution plan approved under sub-section (1) of section 31, may apply to the Adjudicating Authority for directions." 124. The creditors, who are aggrieved, have been given a statutory right to approach the Adjudicating Authority for a direction with regard to implementation of Resolution Plan. The fact that the Lenders never filed any Application before the Adjudicating Authority bringing out any non-implementation by the SRA itself indicate that Lenders on their own were taking the stand that SRA has not achieved the condition precedent. We have already noticed that SRA filed the Application for implementation of the Plan after the joint Lenders' Meeting dated 29.09.2022. 125. One more fact needs to be noticed, which has been brought before us by learned Counsel for both the parties. It is submitted by lea....
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....23 is upheld. (2) The Monitoring Committee and MC Lenders as well as SRA are directed to take steps for creation of charge over the Dubai Property No.1, Dubai Property No.2 and Dubai Property No.3 within a period of 30 days from today. The SRA to bear all necessary expenses for creation of necessary charge. (3) The Performance Bank Guarantee of INR 150 crores, which is lying with the Monitoring Committee/ MC Lenders, shall be adjusted towards the first tranche payment of INR 350 crores as INR 200 crores have already been paid by the SRA. By adjustment of PBG as per the Resolution Plan, the first tranche of payment of INR 350 crores shall be completed. (4) Steps shall be taken for re-constitution of the shares as per the Resolution Plan forthwith. (5) Out of the first tranche payment of INR 350 crores, payments shall be made to the workmen and employees and the creditors as per the Resolution Plan, including the payment of CIRP cost as per the Resolution Plan, which payment shall be completed within 60 days from the date of this judgment. (6) The SRA shall submit an Application for re-issue of Air Operation Certificate which may be obtained within....