9911796707
TMI Blog2020 (9) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... public limited Company incorporated under the Companies Act., 1956 on 04.12.1997 under the name GVK Power (Goindwal Sahib) Limited. Respondent No. 1 is the Corporate Debtor in the main petition. Its registered office is situated at Plot No. 10, Paigah Colony, Sardar Patel Road, Secunderabad, Hyderabad - 500003. 2.3. Respondent No. 2 is a banking company incorporated under the Companies Act, 2013 having registered office at Mumbai. Respondent No. 2 is the Lender's Agent of the consortium of lender banks and the account bank with which Trust and Retention Accounts of the Corporate Debtor are maintained. 2.4 Respondent No. 3 is a company incorporated under the Companies Act, 2013 registered with the Registrar of Companies, Mumbai. IT is the Security Trustee acting on behalf of all the lender banks and bondholders of the Corporate Debtor, including the Applicant. 2.5. Respondent No. 4 to 15 are all banking companies having their branches at the addresses mentioned in the cause tile. The Respondents 4-15 are term loan lenders of the Corporate Debtor. 2.6. Respondent No. 16 is the Bond Holder of the Corporate Debtor and Respondent No. 17 is the Bond Trustee acting on behalf of Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest of the Applicant and other creditors of the Corporate Debtor. 3.5. The Applicant at para 8 of the Application submitted that this Tribunal has ample powers under Rule 11 of NCLT Rules, 2016 to pass status-quo order restraining the Corporate Debtor from making any payments to any of its creditors, including lenders from the Trust and Retention Accounts pending adjudication of the main petition. In this connection, the Applicant has relied on the decision of Hon'ble NCLAT in the matter of NUI Pulp and Paper Industries Private Limited vs. M/s. Roxcel Trading GMBH in Company appeal (AT) (Insolvency) No. 664 of 2019 dated 17.07.2019 which held that "it is always open to the Adjudicating Authority to pass ad-interim order before admitting any application under Section 7 or 9 or 10 of IBC Code". This order of Hon'ble NCLAT was subsequently confirmed by Hon'ble Supreme Court in Civil Appeal No. 6697 of 2019. 3.6 It is submitted that the Revival letter dated 13.06.2019 issued by the Corporate Debtor and the Security interest created over the assets of Corporate Debtor all prima facie indicate that balance of convenience are in favour of Applicant. 3.7 It is further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The Applicant further failed to make out a case requiring grant of reliefs as prayed for. 4.5 It is also contended that Applicant has deliberately suppressed important facts and materials which are necessary to adjudicate the Application. Further it is alleged that Applicant is suppressing crucial facts and payment mechanics agreed between the lenders. It is also contended that the Application suffers from defects of suppressio veri and suggestio falsi. 4.6 Respondent No. 3 submits that any reliefs if granted by this Tribunal would be rendered infructuous as Applicant being a party to the Inter-creditor Agreement, had given consent to the priority rights of the Priority Lender, over all other Existing Creditors including the Applicant. As such, Respondent No. 3 submitted that IDBI Bank / Respondent No. 2 (Account Bank) should not act contrary to any instructions of the Priority Lender. Clause 3.2 of the Inter-creditor Agreement is reproduced below:- "3.2 With respect to the foregoing and whether or not an Event of Default is continuing, until the Account Bank is notified otherwise by the Priority Lenders, the Account Bank shall not act to any contrary instruction from any pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3 prayed this Tribunal not to entertain the present Application on the above grounds, else the superior and priority rights of the Priority Lender would be affected. 5. We have heard the learned counsel for the applicant, learned counsel for respondent No. 3 and learned counsel for Respondents No. 16 and 17. Originally, this application was filed against Respondents No. 1 to 3. Respondent No. 1 is corporate debtor. Respondent No. 2 is the bank in which Trust and Retention Account is being maintained. Respondent No. 3 is IDBI Trusteeship Services Limited (Security Trustee). 6. The applicant filed an application bearing IA No. 126 of 2020 to implead Respondents No. 4 to 17. The said application was allowed. Subsequently, Respondents No. 4 to 17 were impleaded. Respondents No. 4 to 15 are the lender-banks of corporate debtor. 7. The application is filed by the FC under Rule 11 of the NCLT Rules, 2016. It is filed before admission of the application filed by the FC under section 7 of the Insolvency & Bankruptcy Code, 2016 (T&B Code' for brevity). The applicant- FC is seeking interim order before admission of the application filed under section 7 of I&B Code. The applicant is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the said account and if it instructs respondent No. 2-accountholder of Trust and Retention Account to release payment, then it would affect all other lenders including the applicant. Therefore, the learned counsel contended that the Tribunal has power under Rule 11 of the NCLT Rules, 2016 to order status quo of the amount lying in Trust and Retention Account. Neither prejudice nor loss would be caused to any other lender in doing so. 11. On the other hand the learned counsel for respondent No. 3 vehemently opposed the application on the ground that the present application is not at all maintainable as the dispute referred to in the application is quite outside the I&B Code. The learned counsel for respondent No. 3 would contend that respondent No. 3 is a bond trustee appointed under the Debenture Trust Deed. Respondent No. 3 will act on the instructions of the sole bondholder (priority lender or bondholder). The Trustee is bound to protect the interest of the bondholder. Exhibit-A is the Debenture Trustee Agreement. 12. The learned counsel contended that priority lender has special priority rights which are conferred on the priority lender by way of various agreements and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No. 3 heavily relied on the Debenture Trust Deed. The learned counsel contended that money lent by the Priority Lender was utilised for repayment of the moneys borrowed from the existing creditors. Therefore, the priority lender to be paid first and the applicant and other lenders are the parties to the agreements recognising the priority right of the lender. The existing creditors have given consent for such arrangement as per the Inter-creditor Agreement. The learned counsel has relied on certain clauses of the Inter-Creditor Agreement. Clauses 3.1(a), 3.1(b)(iii) and 3.1(b)(iv) are reproduced hereunder: "3.1(a) The creditors acknowledge that, whether or not an Event of Default is continuing, all Cashflows and any payments by the borrower under the Finance Documents shall be payable to the Priority Lenders in priority over any such amounts payable by the Borrower to the other Creditors (whether towards debt repayment, interest, prepayment or otherwise)." "3.1(b)(iii) Priority in Payment of Proceeds: The priority lenders will be paid in priority from proceeds credited into all accounts (including each sub-account detailed in Section 2.1 (Establishment of the Account) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event of default has occurred and is continuing, then until such time as the security trustee has notified the Account Bank that such event of default has been cured or waived under the relevant financing document, the Account Bank shall act only on the instructions of the security trustee and make withdrawals from the accounts in accordance with the instructions of the security trustee (who shall act in accordance with the Inter-creditor Agreement). Notwithstanding anything to the contrary in this Agreement: (i) The Account Bank shall not, whether or not an event of default has occurred or is continuing, act in a manner contrary to the instructions of the priority lenders or the security trustee (acting in accordance with the instructions of the priority lenders), at any time; (ii) The security trustee shall, at all times and in respect of all actions or instructions contemplated hereunder, comply with the provisions of the Inter-creditor Agreement; and (iii) All payments required to be made to the priority lenders shall at all times, whether or not an event of default has occurred or is continuing, continue to be made in accordance with this Agreement and the Inter-credit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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