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TMI Blog2014 (3) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... h. 3. BNYM's Company Application was taken up by this court. Three orders were passed on 28th October 2013, 29th November 2013 and 11th December 2013. ICICI Bank's present application seeks leave to be impleaded as a respondent to the Company Application; alternatively, leave to intervene; a modification of the order dated 11th December 2013 in BNYM's Company Application; and further reliefs in relation to Rig V-351. 4. Having heard Mr. Tulzapurkar, Mr. Dwarkadas, Mr. Narichania and Mr. Madon, learned senior counsel for the three contesting parties, I am not persuaded to grant any reliefs on this Company Application. In my view, what ICICI Bank seeks is the creation of an additional security in its favour over Rig V-351, although there is no such pre-existing security, and although ICICI Bank is otherwise sufficiently secured for any claim that it might have against GOL Offshore. I have also found that ICICI Bank's claim is not yet due. The application here is not only premature but is a hasty and unjustified attempt to defeat the resolution of at least part of BNYM's claim against GOL Offshore. The only basis for ICICI Bank's claim appears to be that some of the funds that it ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Offshore further to the brink of a financial crisis, and that too before the Company Petition was heard on merits, the Court declined the injunction. In short, the Court permitted GOL Offshore (and, presumably, its subsidiary) to continue with its proposed sale transaction of Rig V-351. GOL Offshore was required to place on affidavit details of this transaction and amount received after the sale was completed. The ad-interim order granted earlier was vacated. Paragraph 8 of that order notes the commitment by the Chairman and Executive Director of GOL Offshore, one Prakash Chandra Kapoor, that a security would be created over the rig in favour of the bondholders represented by the BNYM: 8. Since the ad-interim order is being vacated entirely upon an express undertaking given by the Chairman and Executive Director of the respondent company and the same Chairman and Executive Director has represented to the bond holders that there will be security of the said Rig for the purpose of repayment to the bondholders, the undertaking given in the affidavit which is reiterated by the learned senior Advocate in the court, will also to be treated as an undertaking given by the Chairman and Exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prepayment The Borrower shall immediately within 7 (seven) days, prepay the whole or any part of this Facility from: (i) Proceeds of disposal/sale of any of the rigs owned by the Borrower or its subsidiaries/group companies; (ii) * * * (iii) * * * (emphasis supplied) 10. Now ICICI Bank has no security over the rig in question, Rig V-351/Somnath. That rig is also not an asset of GOL Offshore, but of its subsidiary; and ICICI Bank has extended no credit facilities to the subsidiary that owns the rig. ICICI Bank is also admittedly otherwise fully secured. Repayment under the STL Facility is not due till 15th November 2014, though interest of over Rs.56 lakhs has fallen due. Mr. Tulzapurkar, learned senior counsel for ICICI Bank, says that clause 11 of the STL Facility Agreement is a covenant by GOL Offshore that, to all intents and purposes, earmarks for repayment of ICICI Bank's dues under that agreement all sale proceeds of every rig owned by GOL Offshore or any of its subsidiaries. That would include the rig in question too. He also draws attention to an email dated 20th December 2013 from GOL Offshore's Nitin Bhojani to various persons including ICICI Bank that it would cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. ICICI Bank therefore could not have been unaware either of the court orders or of GOL Offshore's proposal in relation to the rig. Mr. Madon then turns to the reliefs that ICICI Bank seeks. Prayer (c) makes it clear, he submits, that ICICI Bank now seeks to have the rig made a security for the repayment of its dues under all four agreements, not just the STL Facility, and it does so on the basis of its alleged innocence, a state of affairs as distanced from the facts as it is possible to be. 13. Mr. Dwarkadas, learned senior counsel for BNYM, also weighs in against ICICI Bank. How, he asks, is ICICI Bank concerned with a private treaty between the petitioning-creditor and its debtor? ICICI Bank has filed no petition of its own. The bonds of which BNYM is a trustee were due in October 2012. What ICICI Bank asks, Mr. Dwarkadas says, is that bondholders should defer their date of repayment, only because ICICI Bank has now decided it is time to step in. There is absolutely no justification for this. He points to my own order of 5th February 2014, when this Company Application was mentioned though not listed that day. In paragraph 5 of that order, I noted that though ICICI Bank had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up? Does he oppose it? Is there candour in his application? A fidelity to facts? Are the reliefs he seeks, at least prima-facie, for the benefit of a defined class, be it of creditors or workmen, or even the company itself? Or it is merely self-serving? 15. As far as I can tell, ICICI Bank's application fits only this last description. It attempts to secure an order by which it will exercise dominion over the asset of one of GOL Offshore's subsidiaries in satisfaction of its claim, otherwise fully secured, against GOL Offshore. That claim, as Mr. Madon and Mr. Dwarkadas are quick to point out, is based on a wholly incorrect statement and a deliberate distortion of the facts. ICICI Bank's application, read without the traverses from GOL Offshore and BYNM, gives the distinct impression that it was somehow being bamboozled by the sale of the rig. Its application does not disclose its prior knowledge of the filing of the main petition, or the implications of the fact that the order of 11th December 2013 predates the STL Facility Agreement. Curiously, the STL Facility Agreement is not appended to the affidavit in support. Only one clause is extracted. The document itself was produced b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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