TMI Blog2023 (7) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019, was issued by the 1st Respondent / Bank / Petitioner / Financial Creditor, because of the Default, committed by the Corporate Debtor, in making payments, as per Master Amendment Agreement dated 21.07.2017. In reality, the Corporate Debtor / GVK Power (Goindwal Sahib) Ltd., had availed the Credit Facilities, but, failed and neglected to operate the same, in accordance with the agreed Terms and Conditions. The Account, was classified, as Non Performing Asset, from 29.11.2017. It is pointed out that from the Information Utility i.e., National E-governance Services Limited, a record of Default, was produced, before the Adjudicating Authority, on behalf of the 1st Respondent / Bank / Financial Creditor - Be it noted that, the Inter Creditor Agreement, was executed by some Consortium Lenders of the Corporate Debtor (including the 1st Respondent / Bank / Financial Creditor), pursuant to the Reserve Bank of India s Directions 2019. In reality, the Inter Creditor Agreement, dated 06.07.2019, was executed to afford a scaffold, for a possible Resolution. No wonder, there is no Fetter in Law, much less in the Reserve Bank of India s Directions 2019, for the Lenders, to resort to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocates For the Respondent No. 2 / : Ms. Kanishka Prasad , Advocate IRP JUDGMENT ( Virtual Mode ) Justice M. Venugopal , Member ( Judicial ) : Introduction : The Appellants have preferred the instant Comp. App (AT) (CH) (INS.) No. 385 of 2022, on being dissatisfied with the impugned order dated 10.10.2022 in CP No. 43/7/HDB/2020 (Filed by the 1st Respondent / Financial Creditor / Bank / Petitioner ), under Section 7 of the I B Code, 2016, read with Rule 4 of I B (AAA) Rules, 2016, passed by the Adjudicating Authority ( National Company Law Tribunal , Hyderabad Bench-I, Hyderabad). 2. The Adjudicating Authority ( National Company Law Tribunal , Hyderabad Bench-I, Hyderabad), while passing the impugned order dated 10.10.2022 in CP (IB) No. 43/7/HDB/2020 (Filed by the 1st Respondent / Financial Creditor / Bank / Petitioner ), under Section 7 of the I B Code, 2016, read with Rule 4 of I B (AAA) Rules, 2016, among other things, at Paragraph Nos. 60 to 70, had observed as under: 60. In the above backdrop, we proceed to decide the Point, by referring at the outset to Direction 9 of the Reserve Bank of India (Prudential Framewor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Majority Lenders in accordance with this Agreement and the Regulatory Framework, each Lender (including if such Lender is a Dissenting Lender) agrees that it shall not initiate any legal action or proceedings (including proceedings under IBC) against the Borrower or any other person that may jeopardise the successful implementation of the Resolution Plan in accordance with the terms of such Resolution Plan. 63. Having examined the above along with relevant provisions / clauses in RBI Directions, 2019 and the ICA dated 06.07.2019, supra, we are unable to subscribe to the view of the Ld. Sr. Counsel for the corporate debtor as, Clause 13.2 of the ICA, categorically states that in the event the Lenders decide on implementation of a Resolution Plan the standstill period shall extend during the implementation of the Resolution Plan (which is currently 180 (one hundred and eighty) days from the end of the Review period, thus making the approval of the resolution plan if any within 30 days imperative and only upon such approval the stand still period gets extended to 180 days. Therefore, the sine qua non, for extension of the standstill period from initial 30 days to 180 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng any enforcement action under IBC or otherwise and to this extent, this Agreement shall prevail over the terms of the Amended and Restated Inter Creditor Agreement. It is clarified that no notice or waiting period shall be applicable to any Lender for taking any necessary actions including enforcement action against the borrower after the expiry of the standstill period specified in Clause 13.2 below. Moreover Clause 13.3 of the ICA says that: The aforesaid standstill provision shall not preclude the lenders from initiating or continuing any action against the borrower or its promoters / directors / officials or other persons for criminal offences. Hon ble NCLAT in re. Amitabh Kumar Jha Vs. Bank of India, supra, held that: .. .. The Clauses in the Inter-Creditor Agreement would not supersede the rights and obligations of Rupee Lenders in their independent capacity and this is further reinforced by Clause 1.3 of the Inter-Corporate Agreement . The ruling below, in re, relied on by the Ld. Sr. Counsel for the Applicant wherein it was held that; notwithstanding the fact that neither the claims barred by law nor do such Financing Documents cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove existence of a financial debt which is over Rs.1 crore and its default, hence the application as filed by the Financial Creditor is found to be fit for admission. Accordingly the application is allowed. The Corporate Debtor was put under CIRP forthwith. and place the Corporate Debtor , under Corporate Insolvency Resolution Process forthwith, by admitting the Section 7 Application and declared Moratorium , etc. Appellants Submissions: 3. According to the Appellants, the Adjudicating Authority ( National Company Law Tribunal , Hyderabad Bench-I, Hyderabad), had not applied its mind, while Admitting the Section 7 Petition CP (IB) No. 43 / 7 / HDB / 2020 , because of the fact that basic requisites of Debt and Default , that are required to be examined and proven , prior to the admission of Petition , seeking to initiate Insolvency Process , was not established. 4. The Learned Senior Counsel for the Appellants contends that other than the existing Term Loans , the Corporate Debtor / GVK Power (Goindwal Sahib) Ltd. , had required the Additional Funds , for Working Capital , and meeting the Operational Expenses . Indeed, according to the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tressed Assets) Directions 2019 ( RBI Directions of 2019 ) dated 07.06.2019, for the purpose of providing a framework for early Recognition, Reporting and Time Bound Resolution of Stressed Assets . 10. The Learned Counsel for the Appellants comes out with a stand that the Lenders , including the 1st Respondent / Bank / Financial Creditor / Petitioner , were required to undertake a prima facie review of the Corporate Debtor s Account, within 30 days, and according to the Corporate Debtor, the Review Period , came into effect from 07.06.2019. 11. It is the version of the Appellants that, on 02.07.2019, the Consortium of Lenders , had decided that the Resolution Plan , outside the scope of the I B Code, 2016, would be a better option and had agreed to execute an Inter Creditor Agreement , after taking internal approvals from their respective managements. As a matter of fact, on 06.07.2019, an Inter Creditor Agreement , was executed between the Project Lenders and Priority Lenders and the E Y , was appointed by the Corporate Debtor , as the Process Advisor , to help prepare a suitable Resolution Plan . 12. The Learned Counsel for the Appellants points out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l ). 16. Besides the above, the Learned Counsel for the Appellants, adverts to the Judgment dated 31.08.2017 of the Hon ble Supreme Court, in the matter of Innoventive Industries Limited V. ICICI Bank Anr. (vide Civil Appeal Nos. 8337 8338 of 2017), wherein at Paragraph 30, it is observed as under: 30. .. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise. 17. Advancing his argument, the Learned Counsel for the Appellants points out that post the filing of Section 7 Petition / Application , by the 1st Respondent / Bank , the IDBI Trusteeship Services Limited ( Bond Trustee ), had filed a Commercial Suit , before the Hon ble High Court of Bombay, for release of a sum of Rs.292.70 crores from the Trust and Retention Account ( TRA ) for repayment of debt, payable by the Corporate Debtor , to the Priority Lender II , from the TRA Account, to enable the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.12.2019. 22. The Learned Counsel for the Appellants points out that the Punjab State Electricity Regulatory Commission ( PSERC ), through its Order , dated 17.01.2020, had approved the Capital Cost of the Project of the Corporate Debtor , to the tune of INR 3,058.37/- Crores, only against the Total Capital Cost , that was incurred and claimed, by the Corporate Debtor , Viz. INR 4,267.38/- Crores. 23. The Learned Counsel for the Appellants submits that, the aforesaid Capital Cost , is to be paid by the Punjab State Electricity Regulatory Commission , to the Corporate Debtor , over a period of time and that the said monies, so paid, will be used for the payments to be made to the Lenders . Also that, the Corporate Debtor , had preferred an Appeal , against the Order dated 17.01.2020 of Punjab State Electricity Regulatory Commission , before the Appellate Tribunal for Electricity and the said Appeal No. 41 of 2020 , is presently, pending for an Adjudication . 24. According to the Appellants, if the Capital Cost , as claimed by the Corporate Debtor , is declared by APTEL , as payable, then, in terms of the PPA and applicable Punjab State Electric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,84,79,463 68,03,33,440 70,88,12,903 5 LIC of India 2,84,79,463 68,03,33,440 70,88,12,903 6 United Bank of India 16,09,71,841 60,91,02,963 77,00,74,804 7 Bank of Baroda 2,58,34,770 61,71,28,786 64,29,63,556 8 Punjab Sind Bank 2,31,12,940 55,20,77,950 57,51,90,890 9 UCO Bank 2,36,60,573 56,42,96,615 58,79,57,188 10 Bank of India 1,42,41,187 34,02,14,415 35,44,55,602 11 Indian Bank 1,55,29,366 37,09,69,959 38,64,99,325 12 Aditya Birla ARC (taken over from Karnata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut, the Adjudicating Authority / Tribunal , had overlooked the same and wrongly had admitted the Corporate Debtor , into an Insolvency . 30. The other contention advanced on behalf of the Appellants is that, the Adjudicating Authority / Tribunal , had blindly admitted the Corporate Debtor , into the CIRP Process, unmindful of the repercussion of a such decision on the Corporate Debtor, its Stakeholders , numerous Employees , Workmen and their Families . 31. The Learned Counsel for the Appellants, takes a stand that the Adjudicating Authority , had not disclosed the reason for determining the date as 26.06.2020, as the Date of Moratorium , and that the Hon ble High Court of Bombay, through its Order dated 26.06.2020, had restricted the Lenders , from Withdrawing , any amount from the TRA of the Corporate Debtor , while considering the Priority Rights , in receiving their Dues , by the Priority Lenders . But the said fact, ought not to be relevant for the fixation of the Moratorium Date , and even the fixation of such Retrospective Date is untenable in Law , because, it is Arbitrary , even assuming, such a Power , exists under Rule 11 of the NCLT R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent : 39. The Learned Senior Counsel for the 1st Respondent / Bank submits that from 01.02.2010 to 27.07.2017, Four Term Loan Facilities and one Working Capital Facility , were sanctioned by the Consortium of Lenders , including Financial Creditor , to the Corporate Debtor . 40. According to the 1st Respondent / Bank / Financial Creditor, the 1st Term Loan, was Rupee Facility Agreement , dated 01.02.2010, the 2nd Term Loan, being Rupee Facility Agreement , dated 07.08.2015, the 3rd Term Loan Rupee Facility Agreement , dated 15.04.2016 and further that the Working Capital Consortium Agreement (acceded to) by the 1st Respondent was through Deed of Adherence , dated 29.06.2016, the 4th Term Loan was Rupee Facility Agreement dated 21.07.2017. In short, these Term Loan No. II, III and IV, were sanctioned by the Consortium Lenders , including the 1st Respondent / Financial Creditor , owing to costs overruns on the Project . Indeed, the 1st Respondent / Bank / Financial Creditor, had disbursed Rs.328,45,00,000/- (under Facilities). 41. It is represented on behalf of the 1st Respondent / Bank / Petitioner that main CP No. 43 / 7 / HDB / 2020, was filed by it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Priority Debenture Trust Deed , the Corporate Debtor was under an obligation to clear all outstanding amounts which are due to the Priority Lender in full prior to making any payments to the other Project Lenders . 47. The Learned Counsel for the 1st Respondent / Bank contends that no sums , were outstanding to the Priority Lender , on the date of filing of Section 7 Application, under I B Code, 2016, and that the Application was filed on 20.12.2019, and this fact was affirmed by the Priority Lender , in the Minutes of the Meeting of the Lenders that took place on 21.01.2020. Later, the Priority Lender , had issued an Acceleration Notice , dated 24.01.2020 to the Corporate Debtor, declaring all amounts owed to the Priority Lender, under the Bond Documentation , to be due and payable. 48. The Learned Counsel for the 1st Respondent / Bank, adverts to the fact that Clauses (d) and (e) of the said Acceleration Notice , specify numerous Events of Default , that were triggered, including Insolvency, Event of Default and Cross Default provisions, but, does not mention about the Existence of any Payment Default . 49. The Learned Counsel for the 1st Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the 1st Respondent / Bank, brings it to the Notice of this Tribunal , for admitting an Application , under Section 7 of the I B Code, 2016, the requirements as per Section 7 (5) of the Code, are that the Tribunal , must be satisfied that a Default , had occurred and the Application , under sub-section (2) is complete. 56. According to the Learned Counsel for the 1st Respondent / Bank / Financial Creditor, the Award , passed the Arbitral Tribunal , and the later Tarif Order , issued by the Punjab State Electricity Commission , on 17.01.2020, have no material bearing on the case. 57. The Learned Counsel for the 1st Respondent / Bank projects an argument that the Clauses that accord priority to the Priority Lender , under the Debenture Trust Deed , dated 30.04.2017 and Inter Creditor Agreement dated 21.07.2017, do not absolve the Corporate Debtor, from making payments to the Senior Lenders , including the 1st Respondent / Financial Creditor , under the Facility Agreements . 58. The Learned Counsel for the 1st Respondent / Bank points out that the Reserve Bank of India s Circular dated 12.02.2018 , and its impact on the Resolution Plan discussions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder , dated 19.08.2020, it is evident that the dispute with the Priority Lender , was settled and the entire Claim of Priority Lender , was satisfied with the payment of Rs.295 Crores. In fact, the Hon ble High Court of Bombay, had just recorded a Settlement , that was arrived at, between the Corporate Debtor , and the Priority Lender , this cannot be treated as a Legal Finding , on the aspect of whether new amounts, were due to the other Lenders , until the Priority Lender , was paid in full . 63. The Learned Counsel for the 1st Respondent / Bank points out that the requirement of prepayment , to the Priority Lender , after 24.01.2020 and the Hon ble High Court of Bombay s Order does not affect the Default , committed by the Corporate Debtor , towards the 1st Respondent / Bank, as on the date of Filing of the Application, under Section 7 of the Code, on 20.12.2019. 64. The Learned Counsel for the 1st Respondent / Bank takes a stand that the Dues , owed to the Consortium Lenders , including the 1st Respondent , remain unpaid , and are outstanding , and that the Dues of the Priority Lender , was settled and the whole Claim of the Priority Lender , was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 IDBI Bank 14,12,80,84.102 13,82,95,76,446 29,85,07,656 - 21.27% 2 Punjab National Bank 7,72,26,17,488 7,72,26,17,488 - - 11.88% 3 Union Bank of India 6,82,98,18,435 6,82,98,18,435 - - 10.50% 4 Axis Bank Ltd 5,59,75,78,051 5,59,75,78,051 - - 8.61% 5 Indian Infra- structure Finance Company Ltd. 5,14,50,23,511 5,14,50,23,511 - - 7.91% 6 Life Insurance Corporation 5,04,06,63,313 5,04,06,63,313 - - 7.75% 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Vidarbha Industries, would receive sufficient funds to repay the Financial Creditor. 72. Apart from the above, even in the instant case, if APTEL rules in favour of the Corporate Debtor and determines the capital cost as Rs.4,441 Crores, that amount does not accrue to the Corporate Debtor. Rather, the Corporate Debtor is only permitted to recover 4.5% (appx.) of such amount for every year of operations. 73. The Learned Counsel for the 1st Respondent / Bank points out that in the present case, the PSERC s Tariff Order , merely calculated the capital cost , of the Project , which would be factored in while determining the tariff. The entire capital cost is not immediately realisable. 74. According to the Learned Counsel for the 1st Respondent / Bank, in the present case, as seen from the Balance Sheet of the Corporate Debtor, in respect of the Year 2021 2022 Financial Year, the Financial condition of the Corporate Debtor , is Precarious , with Liabilities , far exceeding its Assets, by almost Rs.3,000 Crores. 75. Furthermore, No Acceptable Resolution Plan , was received from the Corporate Debtor and added further, No Acceptable Resolution Plan , was received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ICA , on 01.10.2019. 79. The Learned Counsel for the 1st Respondent / Bank, while winding up, prays for Dismissal of the instant Appeal , by this Tribunal , to secure the ends of Justice . Status Report of 2nd Respondent / Resolution Professional : 80. The 2nd Respondent / Resolution Professional , took control of the Management of the affairs of the Corporate Debtor , along with his Team, on 19.10.2022, and further that a Public Announcement , was issued on 21.10.2022, announcing the Initiation of Corporate Insolvency Resolution Process of the Corporate Debtor , and calling for the Submission of Claims , as per Section 15 of the Code, which was published in Economic Times , Nava Telangana , Punjabi Tribune , Newspapers. The last date for Submission of the Claims , was on 01.11.2022. 81. The 2nd Respondent, upon receipt of Claims , from numerous Creditors , had verified the same and the Total Financial Creditors Claims were INR 6,584.60 Crores, out of which, INR 6,502.90 Crores, were provisionally admitted. Indeed, the Total Operational Creditors Claims received, till date, were INR 245.40 Lakhs, which are under consideration. Moreover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of a Contract , between the Parties , can be established, not only by their Words , but by their Conduct , as per decision of the Hon ble Supreme Court in Bharat Petroleum Corporation Limited v. Great Eastern Shipping Company Ltd., reported in AIR 2008 SC 357. Tribunal s Role: 89. Undoubtedly, the Orders and Judgments of a Tribunal / an Appellate Tribunal , do have sanctity , in Law . In fact, Inviolability of Judicial Proceedings , is the foundation of the matter. There may not be an Expediency , in Pronouncement of an Order / Judgment , by a Tribunal / an Appellate Tribunal . An Order / Judgment of a Tribunal / an Appellate Tribunal , in a given case, must be written with a positive vein. No wonder, the Function of a Tribunal , is to enthuse confidence and maintain the trust and faith of the Litigants / Stakeholders , in our Processual Justice Delivery System Evaluation: 90. As seen from Section 7 Petition in CP (IB) No. 43/7/HDB/2020, on the file of Adjudicating Authority / NCLT Bench, Hyderabad, Form I ( Part IV) Particulars of Debt , it is mentioned that the Total Debt, sanctioned by the Financial Creditor / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Cost Overrun ), and the Corporate Debtor , in order part-finance, the cost overrun, requested an Additional Rupee Facility, not exceeding in aggregate Rs.497,00,00,000/- (Rupees Four Hundred and Ninety Seven Crore Only) and a Facility Agreement dated 07.08.2015 ( Second Facility Agreement ) was entered between the Corporate Debtor and the Rupee Lenders, which superseded the bilateral arrangements entered into between the Corporate Debtor and certain Rupee Lenders , including the Financial Creditor . As a matter of fact, the financial commitment of the Financial Creditor , in terms of the Second Facility Agreement , remained the same as per its Bilateral Term Loan Agreement , dated 24.12.2014, i.e., Rs.41,00,00,000/- (Rupees Forty One Crore only). 93. Furthermore, pursuant to a request from the Corporate Debtor , the 1st Respondent / Bank / Petitioner , through a Sanctioned Letter dated 22.09.2015, had sanctioned a Term Loan III of Rs.40,25,00,000/- and because of further delays in implementing the Project , there was cost overrun ( 2nd and 3rd Cost Overrun ), and the Corporate Debtor , in order to meet the united debt and part finance the cost overrun, requested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: All lenders must put in place Board-approved policies for resolution of stressed assets, including the timelines for resolution. Since default with any lender is a lagging indicator of financial stress faced by the borrower, it is expected that the lenders initiate the process of implementing a resolution plan (RP) even before a default. In any case, once a borrower is reported to be in default by any of the lenders mentioned at 3(a), 3(b) and 3(c), lenders shall undertake a prima facie review of the borrower account within thirty days from such default ( Review Period ). During this Review Period of thirty days, lenders may decide on the resolution strategy, including the nature of the RP, the approach for implementation of the RP, etc. The lenders may also choose to initiate legal proceedings for insolvency or recovery. 98. On behalf of the Appellants, a reference is made to the Direction 10 of the RBI s Circular dated 07.06.2019 , which reads as under: In cases where RP is to be implemented, all lenders shall enter into an intercreditor agreement (ICA), during the above-said Review Period, to provide for ground rules for finalization and implementation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal action or proceeding against the Borrower, or against individual(s) or entities that have provided any Third Party Security. For avoidance of doubt, nothing in this Clause shall restrict the right of Lenders to adjust or appropriate any margin monies, fixed deposits, cash collateral, bank guarantee / stand by letter of credit provided by any bank or financial institution, towards its Facility. For avoidance of doubt, it is clarified that in respect of ongoing legal proceedings / actions, the Lenders shall take necessary steps to not pursue such proceedings without adversely affecting its rights in respect of such proceedings. (b) transfer or assign their Facility to any person, save and except to a Lender that agrees to enter into a Deed of Accession (if it is not already a party to this Agreement) and be bound by the Resolution Plan. 13.2. The aforesaid standstill provision will be operative for an initial period of 30 (thirty) days from the commencement of the Review Period. In the event that the Lenders decide on implementation of a Resolution Plan as the resolution strategy in accordance with the Regulatory Framework, then the standstill provision shall extend dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Respondent is under an obligation to clear all the Outstanding amounts which are due to the Priority Lenders , in Full , prior to making any payments to the other Project Lenders . 105. Added further, the Learned Counsel for the Appellant adverts to Clause 10.1 of the Trust and Retention Account Agreement dated 21.07.2017, in and by which, the Management of TRA , is entrusted to the Account Bank and the Account Bank is required to release the Funds / allow withdrawals from the TRA , to repay any Creditors / for Operation of the Project, in tune with the instructions of Priority Lender or the Security Trustee (acting in accordance with the Inter Creditor Agreement), and that the Respondent is not responsible for releasing any amount from the TRA , etc. 106. As a matter of fact, the Account Bank , holds control over the Funds of the Respondent and is bound to act in accordance with the TRA Agreement , dated 21.07.2017 to which even the Financial Creditor and the Priority Lenders were Parties , along with the Other Lenders . 107. The Learned Counsel for the Appellant, brings it to the notice of this Tribunal , that in the Minutes of Meeting of the Joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the 1st Respondent / Bank , amounting to over and above Rs.3,000 Crores, in part financing the costs for setting up of 540 MW Coal Fired Thermal Power Plant, in Taran Tarn, Punjab, and for ease of convenience, the Lenders , has referred to supra or termed as Senior Lenders . 113. It is relevantly pointed out that the Deutsche Bank AG , had extended a Loan to the Corporate Debtor , on condition that they will be accepted as a Priority Lender , with Priority Rights . Besides this, it is brought to the fore that the DB International (Asia) Limited , through Debenture Trust Deed , dated 30.04.2017, had subscribed to the Bonds , issued by the Corporate Debtor , thereby, became a Priority Bond Holder , represented by IDBI Trusteeship Services Limited , as Bond Trustee . 114. In terms of the Master Amendment Agreement , dated 21.07.2017, entered into between the Senior Lenders and the Corporate Debtor , the Clause 2.1 of the Agreement points out that the Corporate Debtor, had undertaken to repay the Facilities, advanced by the Senior Lenders , in 78 Structured Quarterly Instalments, beginning from 31.10.2017 to 31.01.2037, as mentioned in the Repayment Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Lenders , to resort to the Summary I B Code Proceedings . The Right of the 1st Respondent / Bank , especially, under the I B Code, 2016, cannot be taken away or overridden, by any Reserve Bank of India s Rule , etc. 121. It is to be remembered that the Corporate Debtor, cannot seek an umbrage , under the Inter Creditor Agreement , with a view to avoid, evade, circumvent and supplant its obligation(s), in terms of the Loan Facility Agreement . Continuing further, the I B Code, 2016 (vide Section 238 of the I B Code, 2016), will have an overriding effect , in regard to anything inconsistent therewith contained in any other Law , for the time being in force. 122. By virtue of the Contract, the 1st Respondent / Bank / Financial Creditor, had executed an Inter Creditor Agreement , and it is well within its Rights , to take recourse to the available remedies in Law . 123. The RBI s Circular dated 07.06.2019, cannot and shall not, in any manner come in the way of a Financial Creditor , to prefer a Petition / an Application , as per Section 7 of the I B Code, 2016. It cannot be forgotten that there was no determination on formulation of a Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor / GVK Power (Goindwal Sahib) Ltd. , was not a privy and party to any of the Clauses of the said Agreement . 130. Dealing with the aspect of the Priority Lenders Claim, were fulfilled, at this juncture, it is relevantly pointed out that no valuable payment , was effected to the 1st Respondent / Bank / Financial / Petitioner , and other Senior Lenders . 131. There is no simmering doubt that the Existence of Financial Debt (vide Section 5(8) of the I B Code, 2016), is over and above the threshold limit of more than Rs.1 Crore (as per Section 4 (1) of the Code). 132. In the present case, the Corporate Debtor has not furnished any material evidence to suggest that, it will be in a position to repay the amounts , owed to the Lenders . It cannot be forgotten that no endeavour was made to accomplish a Resolution Plan , although many deliberations and meetings, had taken place. Besides these, the Corporate Debtor , inspite of request made by the Lenders , had not opted to Improve and Revise , the One Time Proposal , which is an unfavourable circumstance, as opined by this Tribunal . 133. At this juncture, this Tribunal , worth recalls and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner, comes to a resultant conclusion that the view, arrived at by the Adjudicating Authority / Tribunal , by exercising its Judicial Discretion , ofcourse, in admitting the Section 7 Application , in CP(IB) No. 43 / 7 / HDB / 2020 (Filed by the 1st Respondent / Bank / Financial Creditor), does not suffer from any Material Irregularity , or Patent Illegality , in the eye of Law . Accordingly, the Appeal fails. Result : In fine, in the light of the detailed upshot and foregoing reasons, ascribed by this Tribunal , the instant Comp. App (AT) (CH) (INS.) No. 385 of 2022, is dismissed. No costs. The connected pending Interlocutory Applications , if any, are closed. Before parting with the case, this Tribunal , pertinently points out that the Certified Copy of the 1st Respondent / Bank / Financial Creditor , reflects the Correct Date of Moratorium , i.e., 10.10.2022 , and not the Appellants copy and therefore, the Office of the Registry of the Adjudicating Authority / Tribunal , shall act with utmost care, caution and circumspection, in issuing the Certified Copy of any Order of the Tribunal , and to avoid, any accidental slip or omission or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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