TaxTMI 
TaxTMI 
2025 (3) TMI 1190
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....ompany Petition (IB) No. 152/BB/2023, where he subjects the Impugned Order of 08.08.2024, as rendered by the Ld. Adjudicating Authority, NCLT, Bengaluru Bench, the resulting consequence of, which had been that, the Corporate Debtor has been admitted to face the CIRP proceedings under Section 7, of the I & B Code, 2016, as it was sought to be initiated by the Respondent herein who was the Applicant in the Company Petition i.e., IDBI Trusteeship Services Limited (hereinafter to be referred as a Financial Creditor). 2. As a consequence of the judgment of 08.08.2024, the Ld. Adjudicating Authority observed that, since there is an apparent establishment of a debt and default, existing in the petition thus preferred by the Respondent, and has also observed that the petition was held to be within the limitation period, had admitted the petition and declared a moratorium under Section 14 of the I & B Code, 2016, and the necessary consequences to the moratorium under Section 14 of the I & B Code, 2016, was to be followed. 3. Brief facts as it engages consideration, and which has been the subject matter of consideration too before the Ld. Adjudicating Authority, it was to the effect th....
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....husband of the present Appellant, Late Mr. V.G. Siddhartha, on 29.07.2019, who happened to be the Founder, Chairman, and Managing Director and Promoter of the Coffee Day Enterprises Limited, (the Corporate Debtor), this Appellant has taken various steps to ensure the revival and continuous running of Cafe Coffee Day Group. However, owing to an unprecedented force majeure that is because of COVID-19 pandemic, the business of the cafe outlets of Cafe Coffee Day, was either put to a halt or at few places they were running, but not at its fullest capacity resulting in a recurring loss. 7. The Appellant's case was further that, they had made all endeavors to ensure that the aforesaid enterprise and the holding company stayed in an operational capacity, and she kept running. As a result, on 28.07.2020, the Respondent No. 1 alleged to be acting through its power of attorney holder, under the instructions of 100% of the debenture holders had issued a notice of default for the purposes of initiating the CIRP proceedings against the Corporate Debtor. 8. The Appellant contended that, Respondent No. 1 is said to have been acting on behalf of the debenture holder and had issued a noti....
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....ct of the Debentures or under the Transaction Documents; (iii) a reduction in the amount of any payment of principal, interest, fees or commission payable in respect of the Debentures or under the Transaction Documents; (iv) a change to any Obligor; (v) any provision which expressly requires the consent of all the Debenture Holders: (vi) the manner of sharing of any proceeds of enforcement under Clause 10.3 (Power to apply Proceeds): (vii) the release of any Security created pursuant to any Transaction Document or of any Charged Assets (except as provided in any Transaction Document); and (viii) the nature or scope of the Charged Assets except to the extent that it relates to the sale or disposal of a Charged Asset where that sale or disposal is expressly permitted under this Deed or any other Transaction Document; and (b) to authorise the Debenture Trustee to concur in and execute any supplemental deed embodying any such modification by passing a Unanimous Resolution for this purpose. 40. A meeting of the Debenture Holders shall have the following powers exercisable by an Extraordinary Resolution: (a)....
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....ether the Corporate Insolvency Resolution Process could at all have been initiated, in the absence of there being a prior decision-making process, for resolving to initiate the proceedings of CIRP, due to non-compliance of the provisions contained under clause 10 (1)(b), of the Debenture Trust Deed dated 22.03.2019. iii. It was the case of the Appellant and consistently harped upon during the course of argument, that the pleading, which was raised by them in para 3 and 4 of the written statement, had not been considered though, the contents of the same were not controverted, by the Respondent in their Rejoinder Affidavit, which was filed before the Ld. Adjudicating Authority. iv. The Appellant's case was that since, the aspect of default, has to be determined from the date i.e., 30.09.2019, and even if at all the default period could have been extended owing to the COVID-19 situation then too, the said period would end owing to the expiry of 90 days period which stood granted by virtue of the Hon'ble Apex Court Judgment i.e., with effect from 01.03.2022 as observed in MA. No. 21/2022 in MA 665/2021 in Suo motu Writ Petition (C) No. 3/2020, which would be compl....
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....esis of the authority on which basis, the proceedings had been drawn under Section 7 of the I & B Code, 2016, is required to be considered in the context of, what rights would be flowing from, the Debenture Trust Deed which is an admitted document having been executed between the parties. It is not in debate, nor has it ever been argued by any of the counsels about the tenability of the Debenture Trust Deed nor its validation or execution is in dispute. Owing to the fact that, both the counsels agreed, that, there did exists a Debenture Trust Deed, as executed on 22.03.2019, which was laying down the governing principles, that would be monitoring the code of conduct of the members of the Debenture Trust Deed, and the organisation itself for managing the affairs of the company, for the purposes of initiation and conferment of right of initiation of the proceedings under Section 7 of the I & B Code, 2016. 11. The argument of the Ld. Senior Counsel for the Appellant is that, if the Debenture Trust Deed, itself is taken into consideration since there happens to be an apparent failure on the part of the Respondents/Applicant to Section 7 application, they were to comply with, the con....
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....er Clause 2.1, it provides for that an "appointment of a Debenture Trustee". Clause 2.1 as provided under Debenture Trust Deed is extracted hereunder: - "2.1 Appointment of Debenture Trustee The company hereby appoints the IDBI Trusteeship Services Limited to act as Debenture Trustee for and on behalf of other secured parties, pursuant to the trust created under this deed and IDBI Trusteeship Services Limited agrees to act as a Debenture Trustee for and on behalf of the other secured parties in accordance with the terms and conditions contained in this deed." 16. The signatories to the Debenture Trust Deed dated 22.03.2019, had agreed upon the terms and conditions as contained in the Debenture Trust Deed would be binding terms and conditions, and for the aforesaid purpose it enforce upon an obligations on the Debenture Trustee as per the terms of the Debenture Trust Deed to act accordingly. 17. The reference may be made to Clause 3.3 of Debenture Trust Deed, which provides for the terms and conditions and their binding nature, Clause 3.3 provides that, "the terms and conditions shall be binding on the company and the Debenture Holders and all persons claimin....
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.... given under Clause 3.3 of the Debenture Trust Deed, the powers and duties as envisaged were to be discharged by the Debenture Trustee, are contained under clause 10.1, of classification of the powers and duties of the Debenture Trustee, which is extracted hereunder: - "10.1 Authority for certain actions (a) The Debenture Trustee shall; (i) execute and deliver and/or accept the Transaction Documents and do any other act necessary for the creation and perfection of the Security required to be created pursuant to the Transaction Documents; (ii) execute and deliver all other documents, Agreements, instruments, certificates, notices and do all other actions as may be necessary or desirable in connection with the protection and preservation of the rights of the Debentures Holders; (iii) to the extent necessary, hold title deeds and other documents relating to any of the Charged Assets in such manner as it sees fit; and (iv) upon the occurrence of an Event of Default, exercise its rights as Debenture Trustee for the Debenture Holders under the Transaction Documents and under Applicable Law and Clause 7 (Events of Default and Remedies)....
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....ers by the Debenture Trustee, who could act upon only by a majority consent of Debenture Holders, for any proposed action which is to be taken by him. It is submitted by the Ld. Senior Counsel for the Appellant, that even the authorization which was to be given by majority debenture holder, to the Debenture Trustee, was required to be tested and considered, in accordance with Para 39 to 44 of Schedule II of the Debenture Trust Deed. The exercise of powers by the Debenture Trustee, under Sub-clause (b) of Clause 10.1 of the Debenture Trust Deed, could have been only, upon express authorization given, to take action (or omission to act). Under the transaction document, required to be issued by majority of Debenture Holders for giving consent to an approved action, the reference herein with regards to the term "majority action" would be in accordance with the "majority resolution" contemplated under the Debenture Trust Deed, as provided under Clause (b), of the definition clause of majority resolution, which provides for that any action which is to be taken by the Debenture Trustee, has had to be, ratified and based upon the resolution of a meeting of the Debenture Holders, which shou....
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....entation Any representation, information or statement made or deemed to be made or provided by an Obligor in any Transaction Document to which it is a party or any other document delivered by or on behalf of an Obligor under or in connection with any Transaction Document is or proves to have been Incorrect or misleading in any respect when made or deemed to be made. 7.6 Cross default (a) Any Financial Indebtedness of any member of the Promoter Group is not paid when due nor within any originally applicable grace period. (b) Any Financial Indebtedness of any member of the Promoter Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of any actual or potential default, event of default, or any similar event (however described). (c) Any commitment for any Financial Indebtedness of any member of the Promoter Group is cancelled or suspended by a creditor of such member of the Promoter Group as a result of any actual or potential default, event of default, or any similar event (however described). (d) Any creditor of any member of the Promoter Group becomes entitled to declare any Fi....
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....e specified under such order or Applicable Law, whichever is earlier. (b) Any attachment, sequestration, distress or execution affects any asset or assets of any member of the Promoter Group. 7.10 Moratorium The Government of India or any other relevant Governmental Authority declares a general moratorium or "standstill" (or makes or passes any order or regulation having a similar effect) in respect of the payment or repayment of any Financial Indebtedness (whether in the nature of principal, Interest or otherwise) (or any indebtedness which includes Financial Indebtedness) owed by any Obligor (and whether or not such declaration, order or regulation is of general application, applies to a class of persons which includes any Obligor or to an Obligor alone). 7.11 Expropriation Any Governmental Authority or other authority (whether de jure or de facto) takes a step with a view to the nationalisation, compulsory acquisition, expropriation or seizure of all or any part of the business or assets or material rights of any member of the Promoter Group. 7.12 Cessation of Business Any member of the Promoter Group ceases, or thre....
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....o the Memorandum or the Articles. 7.22 Illegality It is, becomes or will become unlawful or contrary to any regulation in any applicable jurisdiction for a Debenture Holder to fund or maintain its investment in the Debentures. 7.23 Remedies upon an Event of Default (a) Upon the occurrence of an Event of Default, the Debenture Trustee inay and shall if so directed by the Debenture Holders by a Majority Resolution declare to the Obligors by notice in writing substantially in the form set out in Schedule 8 (Form of Notice of Event of Default) that: (i) the Debt shall be due and payable forthwith in respect of each Debenture together with all other amounts payable in respect thereof in accordance with the Transaction Documents; and (ii) the Security created pursuant to the Security Documents has become enforceable. (b) Upon the Security created pursuant to the Security Documents having become enforceable, the Debenture Trustee shall (if directed by the Debenture Holders by a Majority Resolution): (i) enforce any Security created or provided pursuant to the Transaction Documents in accordance with the terms thereof;....
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....ed, that the event of default means, the event of default, which is set out under Clause 7, and which would be in exclusion of Clause 7.23 and Clause 7.24. In exclusion to Clause 7, which deals with the circumstances under which the default has to be considered and the consequential remedies available therein, Clause 7.23, deals with the remedies upon an event of default, which according to Clause (a), provides that upon the occurrence of an event of default, the Debenture Trustee may, if, so directed by the Debenture Holders by majority resolution declared to, the obligors by the notice in writing, substantially in the form as set out in Schedule 8 of the Debenture Trust Deed, that is in the form of notice in an event of default. The remedies as it has been dealt with under clause 7.23, which provides for the occurrence of an event of default, the Debenture Trustees, will have to act on the basis of the decision to be taken by the majority resolution, which has to be declared by the obligor by a notice, which will be a condition preceded for the invocation of powers by the Debenture Trustees. In a nutshell, it is the argument of the Ld. Senior Counsel for the Appellant, that for t....
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....process, where certain basic elements are necessarily required to be satisfied. Before the Debenture Trustee is made competent to deal with the authority, which is vested to him in relation to the powers, which have been vested to the Debenture Trustees for an act and action as provided under Clause 39 of Schedule II, as appended to the Debenture Trust Deed of 22.03.2019. 26. In fact, what has been intended to be argued by the Ld. Senior Counsel for the Appellant, in support of his contention with regards to the non-compliance of Clause 10.1(b) that is required to be satisfied, for the purposes of taking an action for drawing the proceeding under Section 7 of the I & B Code, 2016, he submits that, because of Clause 39 as contained under Schedule II, to the Debenture Trustee Agreement, apart from the fact that, there has to be a prior decision before an action is being preceded which is to be taken by the Debenture Trustee and that too in the context of the powers which has been vested by unanimous resolution in the meeting of the Debenture Holders, but for act and action as contained under Clause 39 of Schedule II of the Debenture Trustee Agreement entire proceedings would be pr....
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.... which are required to be dealt with, it has had to be in a meeting, but should have been required to be carried by a majority resolution, where the Debenture Trustee must be so instructed by the Debenture Holders and which has to be carried by at least 51 percent of the outstanding aggregate nominal value of the debentures. From the aforesaid clauses of the Debenture Trust Deed, which have been relied with and referred to by the Ld. Senior Counsel for the Appellant, what he intends to submit is that, in fact in the absence of there being any majority decision taken, under the Debenture Trust Deed and owing to the exceptions which had been carved out for the purposes of taking of the decision by the Debenture Trustee, for any of the exceptions contained under Schedule II, since none of the conditions stood satisfied, the entire proceedings initiated under Section 7 of the I & B Code, 2016, at the behest of the Respondent, would be bad in the eyes of law. Rejoinder Argument: 28. When the arguments revived at the rejoinder stage, the Ld. Senior Counsel for the Appellant, once again had attempted to reiterate his argument to make reference to the various clauses of the Debenture....
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....ercised by the Debenture Trustee, will be inclusive of the exercising its powers in an event of non-payment of debts, as it has been contained under Clause 7.1 or of any of the obligations arising from the transaction documents and other collateral clauses where any obligation is casted upon, to be satisfied under the terms of the clauses collaterally provided under Schedule I of the Debenture Trust Deed. 30. We are of the view that, for the aforesaid reasons, as the Debenture Trust Deed of 22.03.2019, itself contained the form of notice, which was mandatorily required to be given on an identification of an event of default which has to be particularly in the format, which has been given under Schedule VIII of the Debenture Trustee Agreement, which is extracted hereunder: - " Coffee Day Enterprises Limited-Debenture Trust Deed Dated [___________] (the "Deed") 1. We refer to the Deed and Clause 7.23 (Remedies following an Event of Default). Terms defined in the Deed shall have the same meaning when used in this notice unless given a different meaning in this notice. 2. We hereby notify you that: (a) [provide details of event] ....
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.... affidavit filed in support of the application under Section 7 of the I & B Code, 2016, that is on 07.09.2023, would not be holding a valid authority to execute the same. Owing to the fact, that the Board Resolution of 05.03.2019, which is the basis of the conferment of power for execution of the Power of Attorney, is said to have been passed by the Board on 05.03.2019, authorizing Mr. Manohar Maddili to do the act as resolved therein by the Board of Trustees of IDBI Trusteeship Services Limited. The board had ultimately resolved to confer the following rights to Mr. Manohar Maddili, which are extracted hereunder: "RESOLVED FURTHER THAT approval of the Board be and is hereby given to issue Power of Attorney in favor of the above Constituted Attorneys for execution/discharge of various documents/duties including security documents on behalf of the Company." "RESOLVED FURTHER THAT Constituted Attorneys can execute the documents in other regions in case of exigencies. "RESOLVED FURTHER THAT the Managing Director & CEO or the Company Secretary or the Sr. Vice President or any of the Vice Presidents or any of the AVPs are hereby authorized to sign and execute ....
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....ttorney is extracted hereunder: - "The Directors by Resolution dates March 5, 2019, decided to appoint Constituted Attorney with relevant experience (Retired employee of IDBI BANK Limited) as its Agent for execution of various documents including Registration thereof for an on behalf of ITSL." 35. If this particular Clause 5 of the Power of Attorney is taken into consideration, there are two elements that are quite apparent, "first" that this Power of Attorney which was executed in favor of Mr. Manohar Maddili, had its genesis and source of power from the Board's Resolution of 05.03.2019 and secondly if Clause 5 which has been extracted above is read, the powers conferred therein was limited for with the purposes of, execution of "various documents", including "registration" thereof by or on behalf of ITSL, meaning thereby even if Clause 5 is taken into consideration it did not include within itself a power to litigate on behalf of the Applicant to an application under Section 7 of the I & B Code, 2016, in a proceeding, which is held before a court of law. 36. There is another logic as extended by the Ld. Senior Counsel for the Appellant, which deserves considera....
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....Attorney of 06.03.2019, its consideration by us becomes inevitable, which for the purposes of the instant appeal will have only relevance, so far it relates to the activities pertaining to be contained under Clauses 7 & 9 of the Power of Attorney. The relevant powers conferred to the Power of Attorney Holder are extracted hereunder: - "1. To execute, assign, deliver such deeds, declarations, undertakings, securities, indemnities, guarantees etc. in favour of ITSL as may be necessary in connection with the issue of debenture. 2. To execute, sign, lodge / admit for registration with the Sub-Registrar of Assurance or any other regulatory / statutory authorities and deliver all the documents on behalf of ITSL, and attend office at the Sub-Registrar of Assurance and admit execution of such deed. 3. To sign as Constituted Attorney of ITSL and arrange for filing documents/forms with Registrar of Companies, the particulars of charges, modifications of charges or satisfaction of charge relating to the issues of the issuer companies under the provisions of the Companies Act 2013. 4. To execute sign and deliver the Reconveyance deeds / Substitution of Trust....
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....the Appellant submitted that in fact, the power granted to Mr. Manohar Maddili stood exhausted, and as on 07.09.2023, when the section 7 application was instituted for the reason being that, the Boards of Directors of ITSL meeting which was held on 02.02.2021, (the document which is not on record) which is prior to the affidavit filed in support of Section 7 application had delegated the powers to MD and CEO to give power of attorney in favor of officers, retainers and constituted attorneys of ITSL, as its agents as deemed fit, inter alia for the purposes of execution of various documents including production, admission and registration thereof. What is important to be considered at this stage is, that as a matter of fact, owing to the subsequent resolution of the Board dated 02.02.2021, the rights which was conferred by the earlier Board's Resolution of 05.03.2019 and the execution of the subsequent Power of Attorney executed on 06.03.2019, stood overridden by the Board's Resolution of 02.02.2021, which was altogether creating a new right in favour of another individual for the purposes of, performing the activities contained in the Power of Attorney as it was later execut....
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....and also these presents and, to, pay such fees as shall be necessary for the registration thereof and to present and / or admit execution of any document/s by ITSL. 9. To commence, prosecute, enforce, defend, answer and oppose any suit or other legal proceedings, Rejoinders, Written Submissions including but not limited to filing winding up proceedings, filing of Original Applications (OAs)/Recovery Applications before Debt Recovery Tribunals (DRT), initiating action under SARFAESI Act, 2002, initiating actions under Insolvency & Bankruptcy Code, 2016, Filing of Claims before Interim Resolution Professional/Resolution Professionals under Insolvency & Bankruptcy Code, 2016, to file complaints and initiate proceedings in connection with dishonor of cheques under the Negotiable Instruments Act, 1881, to file caveats etc. and demands touching any matters in which ITSL may or may hereafter be interested or concerned and also if the said Attorney shall think fit compromise, refer to arbitration, abandon, submit to judgment or become non - suited in any such suits or proceedings and to appoint Advocate, Solicitors and Pleaders as occasion shall require and to make sign, execute, ....
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....nt ITSL on any such occasion or occasions as aforesaid. 16. To attend, preside at or conduct all meetings of the debenture - holders of whom ITSL is appointed as the Agent and / or Trustees. 17. This Power of Attorney is valid till the time Mr. Kaustubh Sudame, is in employment with IDBI Trusteeship Services Ltd." 42. Having considered, we are of the opinion, that however since the powers which were given, under its Clause 9 of the said document i.e., 06.03.2019, were subjected to a prior authority which was to be conferred by, a specific authorization to be made by the Managing Director, which was not granted in favor of Mr. Manohar Maddili on the date when he filed the affidavit with Section 7 application and that could not have been also for the reason being that, on the date when the application under Section 7 of the I & B Code, 2016, was instituted under the affidavit of Mr. Manohar Maddili, on that day the Power of Attorney of 06.03.2019, became a non-existing document and the authority given therein automatically stood withdrawn and it was never made co-extensive with Power of Attorney of 22.02.2022, due to the subsequent Boards Resolution of 02.02.2021....
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....y observed, that when judicial proceedings are drawn at the behest of an attorney holder, he could only exercise the powers, which have been specifically conferred under the terms of the power of attorney validly executed in his favour and nothing beyond it, the relevant para 17 of the said judgment is extracted hereunder:- "17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan [(1986) 2 WLN 713 (Raj)] it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff." 45. Almost a similar view had been taken by the Hon'ble High Court of Rajasthan, in its prior judgment rendered as reported in AIR 1998 Rajasthan page 185, Ram Prasad Vs Hari Narain & Others in Para 8 and 9 of the said Judgme....
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....ade in open Court. Evidence so given shall be deemed to be oral evidence."" 46. The aforesaid aspect, further stands fortified, because the Appellant in their objection, which was filed before the Ld. Adjudicating Authority on 24.01.2024, in its Para 7 and 11, had specifically taken a plea, about the maintainability of the proceedings, at the behest of Power of Attorney Holder, holding it to be not sustainable, in view of the fact of, lack of proper authorization. Para 7 and 11 of Counter filed by Appellant before the Ld. Adjudicating Authority are extracted hereunder: - "7. The IDBITSL has not obtained any authorisation from the Debenture Holders to file the present application, hence on that ground itself, this application is to be treated as unauthorised application, and accordingly dismissed. 11. Without prejudice to the preliminary objections raised in respect of the lack of authorisation in favour of IDBITSL to file this present application, the Corporate Debtor proceeds to place the following for the kind appreciation of this Hon'ble Tribunal., and prays that this application is not eligible to be considered by this Tribunal under the Code 2016, and ....
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....he duties that have been referred to in the Board Resolution. The recital to the Power of Attorney shows that, to discharge its obligations (ie., duties), it is required to execute various documents. One of the duties specified at Clause 9 is the power to file affidavits, counter affidavits, petitions, written statements, rejoinders etc., before any tribunal, court etc." 49. What is submitted by the Ld. Senior Counsel for the Appellant is that, the Ld. Adjudicating Authority has erred at law by not dealing with the implication of the Board's Resolution and the effect of recurring Power of Attorney, as it stood executed between by the Respondent, authorizing the institution of the proceedings under Section 7 of the I & B Code, 2016, and the said plea which was taken and replied by the Respondent, the Ld. Adjudicating Authority has not even, recorded a single finding with regards thereto, and has not dealt with any of the aspect as to what implication would, the Power of Attorney have in drawing the proceeding under Section 7 of the I & B Code, 2016, and thus he contends that, if the plea is specifically taken and was put to debate by the opposite party to the proceedings has ....
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....ing extract from the affidavit-in-reply/objections of the Director of the corporate debtor makes an interesting reading: "... Hereto annexed and marked collectively as Annexure C are copies of the intimation issued by the banker of the corporate debtor duly recording the instruction of stop payment qua the cheques in question taking record that the cheques had been lost. It is submitted that the banker of the corporate debtor has issued such notices acknowledging stop payment instruction on account of loss of the cheques on 4-3-2017, however inadvertently due to the error in the computers of the banker, the date on the top right shows as 1-1-2018. the corporate debtor in the process of obtaining appropriate letter from the banker of the corporate debtor to the effect that the error in the date has occurred due to some problem in the computers of the banker, and the corporate debtor craves leave to produce copy of the same as and when referred to and relied upon and available with the corporate debtor from the banker." Which ultimately leads to a conclusion that the judgment rendered by the Ld. Adjudicating Authority was without considering the plea taken and without con....
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....t was wide enough to include any obligations contained under Clause 7.1, 7.2, and 7.3. 52. In order to chronologically place the matter, it becomes necessary for us to extract, what the 'default' would actually be, and thereafter what would be the 'majority decision', which is required to be taken before a Debenture Trustee was empowered to act upon majority decision, for taking any action or inactions contemplated under Clause 7. The terms 'default', 'Event of Defaults', and 'Majority Resolution' as contained in Debenture Trust Deed are extracted hereunder: - ""Default" means an Event of Default or any event or circumstance specified in Clause 7 (Events of Default and Remedies) other than Clause 7.23 (Remedies upon an Event of Default) and Clause 7.24 (Notification and expenses) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Transaction Documents or any combination of any of the foregoing) be an Event of Default" "Event of Default" means an event of default as set out in Clause 7 (Events of Default and Remedies) other than Clause 7.23 (Remedies upon an Event of Default) and Clause 7.24 (Notificat....
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....s application from Clause 4.2 on, which he has relied upon, the relevant part of Clause 4.2 is extracted hereunder: - "4.2 Covenant to pay Coupon (a) The Company shall, on each Coupon Payment Date, unconditionally pay to, or to the order of, each Debenture Holder in INR, the accrued aggregate Coupon for the Coupon Period ending on such Coupon Payment Date. Such Coupon shall accrue from (and including) the first day of that Coupon Period to (but excluding) that Coupon Payment Date in accordance with the Terms and Conditions and the Transaction Documents in respect of the Debentures held by such Debenture Holder. (b) The Coupon on each Debenture will be calculated by reference to its outstanding Nominal Value at the Coupon Rate compounded on a quarterly basis." 55. During the course of the argument, we have called upon the Ld. Senior Counsel for the Respondent to answer as to how the term Coupon given under the Debenture Trust Deed, could be read as to be synonymous to the term 'default' which has been independently defined under the Debenture Trust Deed and that too, when the stipulations for the exercise of powers in relation to the Coupons is provided....
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....ve been normally exercised based on the Debenture Trust Deed, which would be binding inter-se amongst the parties, owing to the binding effect of the Debenture Trustee, as given under the Debenture Trust Deed itself, which provides for, that the Debenture Trustee though its functions has to be regulated upon by majority resolution passed by the Debenture Holder, but the contents of the same would have a binding effect on the parties whose act or actions are likely to be affected by the Debenture Trustee Agreement. 59. The enforceability of the terms and conditions of the Debenture Trust Deed has been contained under Clause 3.3 of the Debenture Trustee Agreement itself which is extracted hereunder: - "3.3 Terms and Conditions binding The Terms and Conditions shall be binding on the Company and the Debenture Holders and all persons claiming by, through or under any of them. The Debenture Trustee shall be entitled to enforce the obligations of the Company under or pursuant to the Terms and Conditions as if the same were set out and contained in this Deed." 60. Particularly we would be more concerned with the second expression given under the terms and condition....
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....1) of I & B Code, 2016, which is extracted hereunder: - "7 Initiation of corporate insolvency resolution process by financial creditor. (1) A financial creditor either by itself or jointly with 1[other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government,] may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. 2[Provided that for the financial creditors, referred to in clauses (a) and (b) of sub-section (6A) of section 21, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class, whichever is less: Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allotte....
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....rive source of issuance of notification is, vested under Section 7(1) of the I & B Code, 2016. In the absence of the proceedings being drawn by the Debenture Trustee after its valid procedural authorization, the entire proceedings under Section 7 of the I & B Code, 2016, would be vitiated in the eyes of law, which deserves interference by this Appellant Tribunal. C. Whether the proceedings were barred by limitation? 64. Another question that has been argued, is with regards to the proceedings under Section 7 of the I & B Code, 2016, whether it would be barred by limitation? During the course of argument, it is an admitted case of the Respondent/Applicant, in the application preferred under Section 7 proceedings, that the date of default, which has been reckoned, did chanced on 30.09.2019. That is the date, which is much prior to the imposition of restrictions due to the COVID-19 situation, and as the restrictions of the COVID-19 situation were imposed with effect from 15.03.2020. If that be the situation, it is argued by the Ld. Senior Counsel for the Appellant that, from the date of the default that is 30.09.2019, till the restrictions were imposed because of the COVID-19 si....
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....e restrictions were over, and hence the entire period from 15.03.2020 to 28.02.2022, would not be en bloc excluded for determining the limitation, when the embargoes of limitation stood eradicated even after the extended period of limitation from 01.03.2022 to 30.05.2022 and more particularly when the Respondent/Applicant, has preferred the application under Section 7 of the I & B Code, 2016, only on 07.09.2023, we are of the view that it would expressly be barred by limitation and the en bloc period of 15.03.2020 to 28.05.2022, would not be excluded in determining the aspect of limitation, in those cases where the default chanced prior to restrictions i.e., prior to 01.03.2020 and the limitation was expiring even after the extended period, as the latitude granted for determination of limitation by the Hon'ble Apex Court, has not to be negatively applied to deceive the object of code, more particularly, when the special statute is governing the entire proceedings based upon a strict aspect of limitation. 67. The concept of limitation is a methodology, which has been framed under law, for granting leverage to the affected litigant to do an act or to revive a procedural right whic....
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....se mobility could have been jeopardized or hampered due to the COVID-19 situation where there could have been a deprivation, at their hands for approaching the court for the institution of the proceedings. 69. The rationale for the extension of limitation has not to be disproportionately extended in the manner it has been construed, by the Ld. Counsels for the Respondent, while interpreting the clauses relating to the default and the implications of Article 137 of the Limitation Act. In its harmonious study in context with, the provisions of Limitation contemplated under Article 137 of the Limitation Act. Sl. No Description Date 1 Admittedly Date of Default 30.09.2019 2 Article 137 - Limitation of 3 years 3 years from Date of Default would be 30.09.2022 3. Period Expired prior to Covid-19 Restriction (i.e., from 30.09.2019 to 15.03.2020) 167 days 4 When 3 years would be ending On 30.09.2022 i.e., after the lifting of restrictions, and even after expiry of extended period i.e., till 30.05.2022 as per the judgment of the Hon'ble Apex Court. 5 When would the limitation end under 90 days extension as per Hon'ble Apex Court Judgment ....
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....s under consideration of the said judgment was, as to, whether at all Section 18 of the Limitation Act, which extends the period of limitation, depending upon the acknowledgment of debt made in writing and signed by the Corporate Debtor is also applicable to the provisions contained under Section 238A, which uses the term as far as may be, for the purposes of applying the provisions of the Limitation Act. Use of term "as far as possible", has to be extended to be attached with reasonableness and prudence, it cannot be uniformly applied under all circumstances. 73. The facts and circumstances, which were subject matter in consideration in the matters of Asset Reconstruction Company (India) Limited (Supra) and particularly, that as contained under para 10, which has been relied upon by the Ld. Senior Counsel for the Respondent/Applicant to the proceedings under Section 9 of the I & B Code, 2016, was in the context of reading the principles enunciated under Section 18 of the Limitation Act, in league with the provisions contained under Section 238A of the I & B Code, 2016. Those principles, will not be applicable in the instant appeal. Because here, in the present circumstances, wh....
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....SCC 366 : (2021) 3 SCC (Civ) 605 : (2021) 3 SCC (Cri) 23] authored by Nariman, J. this Court quoted with approval the judgments, inter alia, of Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff [Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff, 1961 SCC OnLine Cal 128 : AIR 1962 Cal 115], ["Bengal Silk Mills"] and in Pandam Tea Co. Ltd., In re [Pandam Tea Co. Ltd., In re, 1973 SCC OnLine Cal 93 : AIR 1974 Cal 170], the judgment of the Delhi High Court in South Asia Industries (P) Ltd. v. Krishna Shamsher Jung Bahadur Rana [South Asia Industries (P) Ltd. v. Krishna Shamsher Jung Bahadur Rana, 1972 SCC OnLine Del 185 : ILR (1972) 2 Del 712] and the judgment of the Karnataka High Court in Hegde & Golay Ltd. v. SBI [Hegde & Golay Ltd. v. SBI, 1985 SCC OnLine Kar 428 : ILR 1987 Kar 2673] and held that an acknowledgment of liability that is made in a balance sheet can amount to an acknowledgment of debt [Ed. : See in detail Shortnote B and paras 19 to 35 and 65 to 68 of Asset Reconstruction v. Bishal Jaiswal, (2021) 6 SCC 366 : (2021) 3 SCC (Civ) 605 : (2021) 3 SCC (Cri) 23 as to when entries in books of accounts and/or balance sheets may amount to an acknowledgment.]." 76. The c....
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....he Respondent had also, made reference to Para 116 which has been extracted above, which is dealing with altogether a different complexion, as to what implications would the entries would have, which occur in the books of accounts and the balance sheets of the Corporate Debtor, whether it will amount to be an acknowledgment of debt, for the purposes under Section 18 of the Limitation Act. For the aforesaid purposes, the Hon'ble Apex Court in the said judgment of Dena Bank (now Bank of Baroda) (Supra) has recorded its reasoning based upon the judgment of Asset Reconstruction Company (India) Limited (Supra). We are of the view that the entries in the books of accounts, no doubt, could be taken as to be the acknowledgment of a debt. 79. But that in itself will not suffice for the purposes of deciding the controversy herein, because primarily, the argument, which was centered around by the Appellant was on a different perspective, that is the validity of authority for initiation of proceedings under the Debenture Trust Deed and about the authority vested under the power of attorney. Aspect of default, which could have at all been attracted, the aspect of acknowledgment under Section....
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.... transaction, the right of the financial creditor to initiate action against such entity being a corporate debtor (corporate guarantor), would get triggered the moment the principal borrower commits default due to non-payment of debt. Thus, when the principal borrower and/or the (corporate) guarantor admit and acknowledge their liability after declaration of NPA but before the expiration of three years therefrom including the fresh period of limitation due to (successive) acknowledgments, it is not possible to extricate them from the renewed limitation accruing due to the effect of Section 18 of the Limitation Act. Section 18 of the Limitation Act gets attracted the moment acknowledgment in writing signed by the party against whom such right to initiate resolution process under Section 7 IBC enures. Section 18 of the Limitation Act would come into play every time when the principal borrower and/or the corporate guarantor (corporate debtor), as the case may be, acknowledge their liability to pay the debt. Such acknowledgment, however, must be before the expiration of the prescribed period of limitation including the fresh period of limitation due to acknowledgment of the debt, from ....
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....unt of the Corporate Debtor being declared as to be Non-Performing Asset and henceforth. 83. Once again, the answer to this particular issue would be by way of reiteration only, that the Applicant/Respondent, since at any stage has not disputed the so-called date of default to be 30.09.2019, if that be the situation, there could not be a situation which would alternatively require to consider a successive reckoning of, default, based on above classified parameters, which could be treated as to be the acknowledgment, so as to give a new lease of life, for initiation of proceedings under Section 7 or 9 of the I & B Code, 2016, by extension of the benefit of Section 18 of the Limitation Act. This issue too will have no implication, as far as the present controversy is concerned, regards determination of date of default. 84. The Ld. Senior Counsel for the Respondent has referred to a judgment as reported in 1991 Supp (1) SCC Page 402 M/s. Mahabir Cold Storage Vs Commissioner of Income Tax, Patna and while referring to Para 12, it is only a reiteration of what has been already observed in the earlier judgments, that entries in the books of account of the Appellant would amount to ....
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....n to the entries made in the books of accounts. 86. Though without admission, even at this stage if we admit that the entries made in the books of accounts, that could be exclusively treated as to be an acknowledgment of the date of defaulted debt, for the purposes of Section 18 of the Limitation Act, then too, when the initiation of the proceedings under Section 7 of the I & B Code, 2016, was filed only on 07.09.2023, whether an expansion of the time could be granted to the Respondents from the date of admission of default, for an institution of the proceedings, the 'answer' by this Appellate Tribunal would be 'No'. It is a rampant case and not in aspect of debate, that the date of default is on 30.09.2019, and it is not in debate rather admitted by Respondent/Applicant, that the limitation has to be determined as per Article 137 of the Limitation Act from the date of admission of default i.e., 30.09.2019 in the instant appeal. If the limitation is construed under Article 137 of Limitation Act, as per the admitted date of default, it will be ending on 30.09.2022, but if it is determined from the date of the imposition of the restrictions because of COVID-19 and even if the same....
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....., 15.03.2020, they have exhausted only 166 days of limitation period as possible of three years, under Article 137 of Limitation Act. (iii) Initially the Hon'ble Apex Court had granted an exemption from limitation due to the COVID-2019 situation from 15.03.2020, which stood extended till 28.02.2022. (iv) It is argued by the Ld. Senior Counsel for the Appellant, that the Respondent would not be entitled for an en-bloc from 15.03.2020 to 28.02.2022, particularly when they themselves have triggered the proceedings, having issued the notices on 28.07.2020, i.e., after the restrictions being imposed by the Hon'ble Apex Court with effect from 15.03.2020, during the period of COVID exemption. (v) They further submitted that even if the exclusion from 15.03.2020 to 28.02.2022 is granted, then too, the institution of the Section 7 proceedings since was only on 07.09.2023, which would be barred by limitation. Because, the period of limitation, if determined from 30.09.2019 is calculated for a period of 3 years which is under Article 137 of the Limitation Act, it will be ending on 29.09.2022. The date of 29.09.2022, would be after the expiry of even the extended pe....
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....n 7 of the I & B Code, 2016, were initiated. 89. The provisions of Section 10 A, which has been argued by the Ld. Counsel for the Respondent seeking its extension, is from the perspective that the en bloc period of limitation from 15.03.2020 to 28.02.2022, should be excluded in determination of 3 years period as per Article 137 of Limitation Act, owing to the language used under Section 10 A, which stood inserted by Act No. 17 of 2020, with effect from 05.06.2020 which was brought into effect on 05.06.2020 and was made applicable retrospectively with effect was 25.03.2020. The extension of limitation under Section 10A, would not be applicable, in the case at hand for the Respondent/Applicant for the reason being that, default was prior to COVID-19 period, they themselves have issued a notice under Section 8 of the I & B Code, 2016, after the insertion of Section 10 A by the Amendment Act No. 17 of 2020, which was inserted on 05.06.2020, and the notice for initiation of the proceedings was issued by the Respondent/Applicant, thereafter 28.07.2020 that is, in between the period when Section 10A was inserted for the purposes of exemption of the period for limitation for drawing the....
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....e cut-off provided given under Section 10A itself. It doesn't include within itself for defaults either prior or after Section 10A, these cases are expressly excluded in those cases. The aforesaid contention could also be taken into consideration in the light of the judgment rendered by the principal bench in the matters of CA (AT) (Ins) No.1016/2022, Mr. Vishal Agarwal (Erstwhile Director Of Gagan I-Land Township Private Limited) Vs ICICI Prudential Real Estate Aif-I and Another, wherein in the said judgment of the principal bench in its Para 7, had specifically observed, that the extension of benefit of limitation or an exemption contemplated in it will not be applicable in those cases where, the default has been reckoned prior to, the period prescribed under Section 10 A. Para 7 of the said judgment is extracted hereunder:- "7. The submission of the learned counsel for the Appellant that as per Annexure-3 clause 6, the date of repayment of instalment is 31.08.2020 only is not acceptable. There being clear admission on behalf of the Appellant in default in payment of interest for the quarters ending September 2019 and December 2019, Appellant cannot be permitted to conte....
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....ommitted prior, application shall not be barred. In paragraph 7 and 8, following have been held: "7. The submission of the learned counsel for the Appellant that as per Annexure-3 clause 6, the date of repayment of installment is 31.08.2020 only is not acceptable. There being clear admission on behalf of the Appellant in default in payment of interest for the quarters ending September 2019 and December 2019, Appellant cannot be permitted to contend that default was committed only on 31.08.2020. In so far as application being barred by 10A, benefit under Section 10A can be claimed by the application only when there is clear default during the prohibited period. The said benefit cannot be claimed by the Appellant by ignoring the admission of default which was prior to 25.03.2020. There being clear admission in the present case, in letter dated September 9, 2021 where the Corporate Debtor itself has admitted that he has failed to pay interest for the quarters ending September 2019 and December 2019 thus acknowledging that it has defaulted in servicing its obligations under the DSA. 8. We, thus, are of the view that the Adjudicating Authority has after considering all....
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.... of the above-mentioned judgment of the Hon'ble Supreme Court, this Tribunal on 18.08.2023 in Company Appeal (AT) (Ins.) No. 914 of 2023 in the matter of Raghavendra Joshi v. Axis Bank Limited & Anr ("Raghavendra" in short) had the occasion to notice the object of Section 10A of IBC and observed as follows: "8. In Ramesh Kymal's Case, the Appellant had filed an Application under Section 9 on 11th May, 2020 on the ground of default. The ordinance No. 09/2020 was promulgated by the President of India on 05th June, 2020 by which Section 10A was inserted into the I&B Code, 2016. An Application was filed by the Corporate Debtor for dismissal of Section 9 Application, the Section 9 Application was dismissed on the ground of Section 10A. Challenging the order of the Adjudicating Authority as well as Appellate Tribunal, Appeal was filed in the Supreme Court. Argument which was advanced before the Hon'ble Supreme Court was that Section 10A having been inserted in the statute book with effect from 05th June, 2020, it shall not apply on the Applications filed prior to the said date, which argument was rejected by the Hon'ble Supreme Court and relevant observations have been made in P....
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....d 17 of the said judgment which is extracted hereunder: - "16. The bar under Section 10A, does not apply when the default is committed prior to 10A period. The learned Counsel for the Respondent has rightly placed reliance on the judgment of this Tribunal in Narayan Manga vs. Vatsalya Builders & Developers Pvt. Ltd. - Company Appeal (AT) (Ins.) No.294 of 2023 decided on 18.08.2023 where after noticing the Section 10A and the judgment of the Hon'ble Supreme Court in Ramesh Kymal v. siemens Gamesa Renewable - Civil Appeal No.4050 of 2020, following has been observed in paragraph 8, 9 and 10: "8. The object and purpose of Section 10A has been explained in the ordinance by which Section 10A was brought on record as well as the Hon'ble Supreme Court in the Judgment of "Ramesh Kymal vs. M/s Siemens Gamesa Renewable [Civil Appeal No. 4050 of 2020]". In the Judgment delivered today by this Tribunal on 18.08.2023 in Company Appeal (AT) (Ins.) No. 914 of 2023, we have occasion to notice the object of Section 10A. We have referred to the objects and reason as given in the ordinance in paragraph 8 of the Judgment which is as follows : "8. In Ramesh Kymal's Case, the ....
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....terest amount which is occurring during the Section 10 A period should be excluded from computation of threshold. 10. The Section 10 A provides that no application/proceedings under Section 7,9 & 10 is to be initiated for a default which is committed during Section 10A period. What is bar is initiation of proceedings when Corporate Debtor commits default in Section 10 A period. If the default is committed prior to Section 10A period and continues in the Section 10 A period the initiation of proceeding is not barred." 17. We, thus, are of the view that Application filed by the Financial Creditor under Section 7 was not hit by Section 10A. Furthermore, it is admitted case of the parties that prior to commencement of 10A period, the default upto February 2020 was approximately Rs.10,51,94,998/-, which is much beyond the threshold provided for Section 7 Application. We, thus, do not find any good ground to interfere with the impugned order of the Adjudicating Authority admitting Section 7 Application. There are no merits in both the Appeals, both Appeals are dismissed. No order as to costs." 97. Under Section 10A of the I & B Code, 2016, will not be attracted in th....
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....ars was expiring on 30.09.2022, the en bloc exclusion of period from 15.03.2020 to 28.02.2022, would not be available to the Respondent/Applicant even under Section 10A of the I & B Code, 2016, so as to derive the benefit of limitation. Even otherwise also and as we have already observed above, that we have to bare in mind that, even after the insertion of Section 10A for the purposes of exclusion of period for institution of the proceedings, there had been no bar as such, because even during the COVID-19 period the courts were functioning and institution of the proceedings were not restricted. And that too, when in the instant case the proceeding has been instituted belatedly on 07.09.2023, that is even much after the expiry of period of limitation on 30.09.2022, which either way falls outside the extended period of limitation, with effect from 01.03.2022 to 30.05.2022. Thus, from the conduct of Respondent/Applicant, they have attempted to blow hot and cold simultaneously and take the benefit of the extended period of limitation under Section 10A of the I & B Code, 2016, by knowing the fact that they had issued the notice under Section 8, after almost one month from the date of th....
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.... argued by the Ld. Senior Counsel for the Respondent/Applicant, is that the plea of Section 65 of the I & B code, 2016, as raised by the Appellants now, was not a plea, which was ever raised by the Appellant before the Ld. Tribunal before the Ld. Adjudicating Authority. This stand of the Ld. Counsel for the Appellant about the plea of malicious prosecution under Section 65 of the I & B code, 2016, has been taken for the first time, is being vehemently opposed by the Respondent/Applicant, on the ground, that the plea was not agitated by the Appellant earlier in the proceedings which were held before the Ld. Adjudicating Authority. 101. In answer to which the Ld. Senior Counsel for the Appellant submits, that the plea of Section 65 of the I & B code, 2016, was raised in the written submissions, which was filed by them on 14.06.2024, after seeking a prior leave from the court, when the plea has been raised in the written submissions thus filed, in pursuance to the order of 29.05.2024, after seeking leave from the court. He submits that one's plea has been traced in the written submissions, thus filed in perseverance to the order dated 29.05.2024, that was bound to have been con....
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....Rule 23 and 24, he submits that normally a remark excluded should not be deprecated and the Appellate Court while considering the appeal can also consider the plea, which was raised which has not considered by the Tribunal, and for the aforesaid purpose he has made reference to para 11 of the judgment which is extracted hereunder:- "11. An appeal is a continuation of the original proceedings. In effect the entire proceedings are before the Appellate Court and it has power to re-appreciate the evidence. It has the power to amend the pleadings, frame issues, resettle issues, delete issues, receive evidence by way of additional evidence, record evidence, summon witnesses and documents, order for commission, pass interim orders. It can also take note of subsequent events. In addition to the power of Trial Court, it has been vested with the power of remand. Power to set aside, modify, reverse and affirm the judgment of the Trial Court. It also has the power to entertain Cross Appeal and power to grant relief to a party to the proceedings who has not preferred appeal and set aside the findings recorded against the respondent in the appellant's appeal. Thus, the power of the ....
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....e cause of justice." this could rather be read in support of the argument extended by the Appellant, that since the plea was specifically taken in the written submissions with regards to Sections 65 of the I & B Code, 2016, and the same was not considered. It would render the judgment to be bad in the light of the judgment of SVG Fashion Private Limited (Supra) and Shanthaveerappa (Supra). 104. Owing to what has been observed above, the entire controversy could be summarized in the following manner : (i) Because of the fact that the default is an aspect not disputed, and its limitation for the purpose of initiation of proceedings, under Section 7 of the I & B Code, 2016, will be expiring on 30.09.2022, after the gracious period granted by the Hon'ble Apex Court, since the Respondent having filed the same on 07.09.2023 would be barred by limitation. Since being in violation to Article 137 of the Limitation Act. (ii) Because of the fact that, the Debenture Trust Deed dated 22.03.2019, it was a self-contained provision, which provided for conferring of a right for initiation of proceedings for insolvency, after a majority decision of the Debenture Holders, whic....
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.... We are of the view that it would be inclusive of taking of an action, when there occurs a 'default', as per the default described under the I & B Code, 2016, as well as under the Debenture Trust Deed itself, which stands affirmed, where exercise of powers for initiation of the insolvency proceedings becomes necessary, in view of the provisions contained under Clause 7.8 of the Debenture Trust Deed which prescribes that, any corporate or legal action or legal proceedings or other procedure, which has to be taken in relation to, thereto various contingencies as contemplated under Clause 7.8(f), which provides for a redetermined action in relation to, the initiation of the Insolvency Resolution Process, under the Indian Insolvency Bankruptcy Code, in respect of any members of the promoter group, (other than the promoter) or any analogous procedure or steps to be taken, has had to be done by the Debenture Trustee, owing to the extension of its powers granted under Clause 7.1 of the Debenture Trust Deed. On a conjoint reading of Clause 7, 7.3, it could be said that, for the purposes of initiation of any insolvency process, it is only the Debenture Trustee who could exercise the powers ....
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....xclusive exercise of functioning by Debenture Trustee who holds their authority, he may and shall, so directed by the Debenture Holders by majority resolution can only issue a notice under Schedule 8, when the above conditions stood stand satisfied. The use of word 'and' between 'may' and 'shall' as used under Clause 7.3(a) of the Debenture Trustee, in fact it makes its mandatory for the Debenture Trustee, that when, the Debenture Holder by majority resolution, identifies the commission of a default, it would have to take an action by issuance of a notice under Schedule 8 as provided under the Debenture Trust Deed itself. 108. The Notification No. SO 1091 (e) dated 27.02.2019, where it has permitted the Debenture Trustee, to exercise its powers for initiation of an application under Section 7 1. It has to be read in a limited sense, so far it relates to the powers carved out in the exception for the remedies contemplated under Clause 7.23 as that it is contained under Clause 7.23(c)(v). The issuance of a notification would be in an exception to the powers, which has been otherwise specifically vested with the Debenture Trustee under Clause 7.1 to be read with Clause 7.23. Thus, ....