TaxTMI 
TaxTMI 
2025 (9) TMI 876
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....) for initiation of the Corporate Insolvency Resolution Process against Supreme Manor Wada Bhiwandi Infrastructure Pvt. Ltd. (CD), has been admitted by the NCLT, Mumbai Bench (in short 'the Tribunal') and Sudip Bhatacharya was appointed as the Interim Resolution Professional (IRP). 2. This appeal came up for preliminary hearing on 21.06.2023. While issuing notice in this appeal, this court had directed that "if CoC has been constituted, no further steps shall be taken by the CoC" 3. Brief facts of this are that the FC has filed the petition under Section 7 of the Code on 23.08.2018 for the resolution of an amount of Rs. 168,83,00,000/- alleging the date of default as 31.07.2018. 4. The Financial Creditor had allegedly disbursed the following facilities to the CD:- Types of Facilities granted Amount in Rupees Term Loan - I ("Term Loan - I") 60,00,00,000/- Term Loan - II ("Term Loan - II") 83,66,00,000/- Funded Interest Term Loan - I ("FITL - I") 5,56,00,000/- Funded Interest Term Loan - I ("FITL - II") 7,16,00,000/- Non-Convertible Debentures ("NCD") 12,45,00,000/- Total 168,83,00,000/- (Term Loan - I, Term Loan - II, FITL - I, F....
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....his is called term loan II for which various documents were executed for securing it, namely, (a) Security Trustee Agreement dated 20.07.2013 (b) Lender's Agent Agreement dated 30.07.2013 (c) Indenture of Mortgage dated 05.09.2013 (d) Deed of Personal Guarantee dated 30.07.2013, executed by Vikram Sharma (e) Deed of Personal Guarantee dated 30.07.2013, executed by Vikas Sharma and (f) Escrow Agreement dated 30.07.2013. 9. Since the CD faced various difficulties in meeting its debt obligation in prescribed time, therefore, consortium lenders approved a restructuring package on 18.02.2015 by which it was agreed upon to restructure the debt of the CD and to provide loan for an aggregate principal amount not exceeding Rs. 414,18,00,000/-. This arrangement is called JLF Restructuring Package (Package). 10. In this package, the share of the FC is as under:- (a) Term Loan I INR 59,65,37,049.22 (b) Debenture Loan INR 12,45,00,000/- (c) -Term Loan II INR 76,98,28,676.05 and (d) FITL Facility - INR 12,72,00,000/-. 11. All the aforesaid facilities were collectively called as 'Facilities'. 12. The Financial Creditor issued sanction letter dated 23.03.....
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....ial year 2016-17. 17. On the other hand, the case set up by the CD is that the concession agreement (CA) was executed on 08.03.2010 by GoM and to facilitate the project, a substitution agreement (SA) was entered into on 31.08.2010 amongst GoM, FC as lead bank and the CD. It was alleged by the CD that as per the SA, debt stand assigned to GoM and was to be paid by it to the lenders. It is also the case of the CD that as per clauses of Article 16 of CA in which events of default and termination was provided, GoM was liable to pay the FC by way of termination payment. The CD also referred to clauses of SA but it emphasised that upon the termination of CA the debt would stand taken over by the GoM and nothing was due from the CD to the FC. It is further the case of the CD that CA was terminated by the GoM on 11.10.2019. The CD invoked arbitral proceedings in which huge amount was recoverable from the GoM, therefore, the case was covered by the decision of the Hon'ble Supreme Court in the case of Vidarbha Industries Power Limited vs. Axis Bank Limited, Civil Appeal No. 4633 of 2021. 18. It is also alleged that the CD vide its letter dated 12.07.2022 offered OTS of Rs. 128 Cr. by i....
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.... Rs. 1730 Cr. was under challenge. The Supreme Court after taking into account the fact that even though such amount has not been materialised, but the CD in that case was entitled to Rs. 1730 Cr. which was sufficient to pay the debt of the FC and dismissed the order of NCLT initiating the CIRP. 21. It is further submitted that the Tribunal has decided the main petition without deciding the pending application. It is contended that the Tribunal reserved the order in the application filed under Section 7 on 01.03.2023, however, on 06.03.2023 the CD filed I.A No. 1248 of 2023 to apprise the Tribunal of the pending arbitration proceedings and that the GoM had proposed a settlement on 03.11.2021 at an amount of Rs. 173.3701 Cr. which was sufficient to discharge the debt of the FC. It is submitted that notice was issued in the application which was adjourned to 27.04.2023 and thereafter on 15.06.2023, without considering the said application the main petition was admitted and later on the said application was dismissed as infructuous. 22. On the other hand, Counsel appearing on behalf of the FC has submitted that for the purpose of admission of an application, the Court has to con....
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....but could not materialise because stay was granted by this Court on 21.06.2023. It is also submitted that in the past two- year, Respondent No. 2 has incurred expenses of Rs. 62,59,704/- which may be ordered to be paid. 28. We have heard Counsel for the parties and perused the record with their able assistance. 29. In so far as the facilities are concerned, the CD has not denied the same. The CD has also acknowledged the debt which is evident from the revival letter dated 22.01.2018 which was addressed not only to the FC (Lender) but to all the lenders. The default is also proved because the account of the CD was declared as NPA in November, 2016 itself. The debt has also been proved from the balance sheet of the CD in the FY 2016-17. Once, the debt and default has been duly proved, the Tribunal has to admit the petition as has been held by the Hon'ble Supreme Court in the case of Innoventive Industries (Supra). 30. The argument of the Appellant that the termination of CA has resulted into shifting of liability upon the GoM, the same cannot be made the basis for dismissing the application because the liability was enjoined upon the CD to make the payment to the FC. 31. ....