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2019 (2) TMI 1827 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - petition challenged on the ground that OBC (Petitioner) had moved this petition under insolvency code without taking into confidence all other members of the consortium - HELD THAT:- The question of maintainability, as raised from the side of the Corporate Debtor, revolves around the terms & conditions enshrined in Third Supplemental Inter Se Agreement dated 27.01.2012. It is therefore necessary to examine the clauses of the said agreement with due care. It is undisputed that the Financial Creditor has entered into a Third Supplemental Inter Se Agreement dated 27.01.2012, with three other banks, wherein Dena Bank is the Lead Bank in the Consortium of Lenders. It is also undisputed that the Financial Creditor is well aware of the terms of the said agreement and is legally bound by the same. The Financial Creditor has failed to produce 30 days' notice to the Lead Bank intimating about the present proceedings against the Corporate Debtor as required by the provisions of the agreement. Nor the Financial Creditor's move of discontinuing/withdrawing the credit facility given to the Corporate Debtor, without the consent or directions of the Lead Bank or other members of consortium was in consonance with the terms of the agreement. Hence, prima facie, it appears that the Financial Creditor has committed a breach of contract, therefore, it appears that the Financial Creditor is not entitled to file this petition. IBC nowhere says that irrespective of all the contractual obligations, a financial creditor can file by itself without the knowledge/approval of other financial creditors. Rather, on reading of several clauses of consortium agreement, it is clear that all the members shall act in coherence with each other. In one of the clauses i.e. clause (n) it is provided that if a bank is desiring to opt out of the consortium, or want to reduce its share, has to offer his offer of quitting the consortium to other members of the agreement. In this case, the OBC /Financial Creditor has not exercised this option. While OBC remained a member of consortium, has taken this step which is prejudicial to the interest of rest of members. The Third Supplemental Inter Se Agreement is not in contravention in any of the provisions of IBC. So it will prevail over the decision of OBC and to be applied along with the provisions of IBC. Granting of various loan facilities, is an intricate arrangement and the transactions are dove-tailed with each other, therefore, it is unethical to a member to keep in mind its own interest without taking due care of the interest of other parties to the consortium agreement. Hence, this contention of the Financial Creditor is cliche for deciding the fate of the present case, thus rejected. This petition is 'Dismissed' on the ground of maintainability, with liberty to file a fresh petition in accordance with law.
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