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TMI Blog2023 (9) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... r Shashank, Mr. Virat K. Anand, Mr. Shashank Shekhar Shukla, Mr. Abhishek Sharma, Advocates for SRA. JUDGMENT ASHOK BHUSHAN , J : 1. These two Appeals have been filed against the same Order dated 07th March, 2023 passed by National Company Law Tribunal, New Delhi, Principal Bench, New Delhi (hereinafter referred to as "The Adjudicating Authority") disposing of I.A. No. 2593/PB/2021 filed by the Interim Resolution Professional (IRP in short) and dismissing I.A. No. 631/PB/2022 as having become infructuous. 2. By the Impugned Order dated 07th March, 2023, the Adjudicating Authority issued direction for appropriation of amount of Rs. 750 Crores as per the Judgment of the Hon'ble Supreme Court dated 24th March, 2021 in the matter of "Jaypee Kensington Boulevard Apartments Welfare Association & Ors. Versus NBCC (India) Ltd. & Ors." Civil Appeal No. 3395/2020 (hereinafter referred to as "Jaypee Kensington"). 3. Company Appeal (AT) Ins. No. 302 of 2023 has been filed by the Jaiprakash Associates Limited (hereinafter referred to as "JAL") being aggrieved by the directions given by the Adjudicating Authority in Paragraph 109-111 of the Impugned Order. In C.A.(AT) Ins. No. 302 of 2023, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate orders as may be deems fit and just." 5. We may first notice certain background facts before we enter into the rival submissions raised by Learned Counsel for the parties which are as under:- i. The 'Corporate Insolvency Resolution Process' commenced (CIRP in short) against the JIL, the Corporate Debtor by Order dated 09th August, 2017 on an Application under Section 7 of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "IBC") filed by the IDBI Bank Limited. IRP issued public announcement on 10th August, 2017 in pursuance of which JAL filed its claim in Form-B as Operational Creditor for a claim amount of Rs. 261.73 Crores including its Pre-CIRP dues before the IRP. 6. We also need to notice few facts and events before initiation of CIRP which are as follows:- i. On 28th February, 2006, bids were called by the Government of Uttar Pradesh for development of Taj Expressway Project which, inter alia, included construction of 6 Lane, 160 KMs Long Super Expressway connecting NOIDA and Agra. JAL was declared as the highest bidder. On 05th April, 2017, JAL incorporated JIL as a Special Purpose Vehicle to undertake the Yamuna Expressway Project. On 19.10.2007, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Interim Resolution Professional in the Insolvency Process of JIL, Orders were passed by the Adjudicating Authority and the Appellate Authority which matter came to be transferred to Hon'ble Supreme Court by way of Civil Appeal No. 8512-27 of 2019 decided on 26th February, 2020 reported as (2020) 8 SCC 401, "Anuj Jain, IRP for JIL Vs. Axis Bank Limited and Ors." Hon'ble Supreme Court in the said Judgment has noticed that JAL entered into Promoter Support Agreement to the Lenders of JIL and has further extended Bank Guarantee of Rs. 212 Crores to meet the DSRA Obligations of the JIL. iv. In the Insolvency Resolution Process of the JIL, a Resolution Plan submitted by the NBCC (I) Limited was approved by the Adjudicating Authority dated 03.03.2020. Against the Order passed by the Adjudicating Authority, appeals were filed before the Appellate Tribunal, several Appeals were filed in the Supreme Court as well as Transfer Application, matters pending before the Appellate Tribunal pertaining challenge to the Order dated 03.03.2020 was transferred to the Supreme Court and Hon'ble Supreme Court by a detail judgment dated 24th March, 2021 decided the Civil Appeal No. 3395 of 2020 with o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021. The Adjudicating Authority provided the copy of final GT's report to JIL and JAL with liberty to file their respective objections. Various affidavits and additional affidavits were filed by the parties JAL and IRP of JIL before the Adjudicating Authority in support of their respective objections to the GT's report. The Adjudicating authority heard the parties and by impugned order dated 07th March, 2023 determined the issue regarding appropriation of Rs. 750 Crores between JAL and JIL. GT reported that an amount of Rs. 536.49 Crores is undisputed amount which is receivable by JIL/Home-buyers of JIL from the JAL. The Adjudicating Authority noted the issue in paragraph 13 of the Order which is to the following effect: "13. Thus, the issues, which emerge from the GT report and post-joint meeting of the parties held on 24.12.2021 for adjudication before this Adjudicating Authority are the following; Issues emerging from GT Report a) Whether in view of the provision of IBC 2016, can JAL claim an adjustment of Rs. 49.63 Crore (advanced against construction extended by JIL) on the basis of RA Bills pertaining to the period prior to the insolvency commencement date of JIL. b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of this Tribunal. 6.13 (B) Amount Receivable by Home Buyers of JIL 3. The disputed amount of Rs. 106.90 Crore on account of IFMD adjudicated vide this order in favor of Homebuyers of JIL (which shall be kept in the escrow account for maintenance till it is transferred to the RWA of Home Buyers of JIL) 106.90 Total 649.52 111. We have noted above that the Hon'ble Supreme Court has specifically directed that only the remainder of Rs. 750 Crores (i.e., after excluding the amount receivable by JIL/Homebuyers of JIL) along with the proportionate amount of interest (on the remainder) shall be returned to JAL. Accordingly, we direct the Registrar NCLT through Registry of NCLT, Allahabad that out of the total amount of Rs. 750 Crores and accrued interest thereon, an amount of Rs. 649.52 Crores along with proportionate interest shall be paid to the JIL/Home buyers of JIL and the remaining amount of Rs. 100.48 Crores (i.e. , Rs. 750 Crores less Rs. 649. 52 Crores) along with proportionate interest shall be retunred to JAL, on receipt of such request from the parties. The IA-2593/PB/2021 is disposed of accordingly." x. In paragraph 110, the Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L is not in accordance with the directions issued by the Hon'ble Supreme Court in "Jaypee Kensington". Hon'ble Supreme Court clearly directed in paragraph 190.2 that the liability discharged by the JAL must be set off for the advance made by the JIL to JAL. Although all issues were noticed in paragraph 13 and findings were returned in favor of JAL in paragraph 40, 60, 62 and 77 but those findings were not given effect to in the operating paragraph 109 to 111. The Operative Judgment of the Adjudicating Authority is not clearly in accord with the findings which were returned in favor of JAL. 9. Mr. Krishnan Venugopal however in his submission has not questioned the amount of Rs. 106.90 Crores which was on account of Interest Free Maintenance Deposit which was directed to be paid by the Adjudicating Authority towards IFMD. Shri K. Venugopal submits that the IBC also recognizes the principle of mutuality and set off between the Corporate Debtor and its Creditors. With regard to the claim of Rs. 212 Crores paid by JAL through encashment of its Bank Guarantees was claimed to be an amount which was furnished to ensure the completion of JIL Projects. It is submitted that even the GT has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Implementation and Monitoring Committee refuting the submissions of Mr. K Venugopal contended that order of the Hon'ble Supreme Court in "Jaypee Kensington" clearly contemplated computation of the amount which was payable to JIL/Home Buyers of JIL which was to be deducted from amount of Rs. 750 Crores. The findings of the Adjudicating Authority in Paragraph 109-111 of the Impugned Order are in accordance with the direction of the Hon'ble Supreme Court in "Jaypee Kensington" Case. The Order for reconciliation of accounts between JAL and JIL was passed by the Hon'ble Supreme Court only for crystalizing the amount payable by JAL to JIL. Hon'ble Supreme Court has not directed any amount be paid by JIL to JAL following the reconciliation as debt, if any, owed by JIL to JAL can only be paid as part of the outcome of JIL's CIRP proceedings. JAL has submitted its claim to IRP as Operational Creditor in Form B. The submission of JAL on mutuality and set off have no merit. Set off is not permissible in CIRP Proceeding which is allowed only in the Liquidation Proceeding. For any claim of JAL against JIL, distribution can be claimed as per waterfall mechanism under Section 53 of the Code. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment over financial creditors of JIL. An amount of Rs. 49.63 Crores pertaining to RA Bills for construction, Rs. 2.33 Crores pertaining to Facility Management and Rs. 1.19 Crores pertaining to hospitality services or Pre-CIRP dues of JAL which amounts are claimed by JAL as Operational Debt in Form B dated 24th August, 2017 and 24th August, 2018. The claim of JAL was not admitted by the IRP of JIL which was never challenged by filing appropriate application, the Adjudicating Authority erred in entertaining the Pre-CIRP dues of JAL in reconciliation exercise. Hon'ble Supreme Court in "Jaypee Kensington" has also held that in paragraph 191.1 that process of reconciliation is not to determine the claims of Operational Creditor or Financial Creditor. The submission of the Appellant that order passed by the Hon'ble Supreme Court in "Jaypee Kensington" was passed in exercise of equity powers and constraints of IBC are not applicable, cannot be accepted. The Judgment clearly mentions that equity was exercised by the Hon'ble Supreme Court in favor of JIL and Home-Buyers on the offer of JAL to refund the advance from Rs. 750 Crores. Mr. Batra further submits that the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor i.e. JIL from any claim by any creditor during the CIRP. Rs. 750 Crores can be assets of JAL but JAL is trying to bypass Section 14 and 53, waterfall mechanism to recover Pre-CIRP dues from JIL's entitlement. Claim of Rs. 212 Crores is a Pre-CIRP Claim and has to be dealt with in accordance with the provisions of the IBC. JAL has already filed a claim in Form B dated 24th August, 2017 which includes Rs. 212 Crores. JAL admittedly is operational creditor for recovery of its dues from JIL, other CIRP Process has to be utilized. Accepting Pre-CIRP claim of Operational Creditor will be preferential in nature and shall be against the observation of the Hon'ble Supreme Court in the Judgment of "Chitra Sharma" and "Jaypee Kensington". Shri Sen further submits that JIL is entitled for the amount of Rs. 70.89 Crores which the Adjudicating Authority wrongly rejected. Shri Seen submits that the Adjudicating Authority has rightly found JIL and home-buyers of the JIL entitled for the proportionate interest for the amount payable to them out of Rs. 750 Crores. 14. We have considered the submissions of Learned Counsel for the parties and have perused the record. 15. As not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs.12.26 Crores ought not to have added amount of Rs.6.13 Crores in the amount receivable by JIL? (vii). Whether direction of the Adjudicating Authority in paragraph 111 directing for payment to JIL/Home-Buyers of JIL of Rs.649.52 Crores with proportionate interest is unsustainable? (viii). Whether JIL is entitled for amount of Rs.70.89 Crores towards Land Swap Deal and the Adjudicating Authority has wrongly rejected the said claim? (ix). The Relief, if any, to which the Appellants in C.A.(AT) Ins. No. 302 of 2023 and C.A.(AT) Ins. No. 507 of 2023 may be entitled? POINT NO. (i) 18. We need to look into Judgment of Hon'ble Supreme Court dated 24th March, 2021 in "Jaypee Kensington" to find out true import of directions of the Hon'ble Supreme Court. As noted above, Hon'ble Supreme Court has framed "Point J, Rs. 750 Crores and accounting between JAL and JIL, discussed from Para 176 to 192 of the Judgment. In paragraph 176 of the Judgment, Hon'ble Supreme Court has noticed the submission made on behalf of JAL in following words: "In fact, it has been the submission on behalf of JAL that either the entire amount of INR 750 Crores with accrued interest be returned to it or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther reduced to a sum aggregate of Rs.195 Crores as on 31.03.2020 (as per the audited accounts), and is likely to be reduced by approx. Rs.165 Crores within a period of 12 months as per the work plan drawn by the RBSA (Advisors to the CIRP) [@Pg.143 of JAL's Additional Affidavit]. 28. Therefore, JAL is conscious of the fact that liability towards JIL now stands to Rs.195 Crores (as on 31.03.2020 and is reducing per the construction work). Since JAL is not in a position to make this payment independently unless the Rs.750 Crores is refunded back to it, hence, in all fairness and bonafide, JAL offers that this admitted and undisputed liability towards JIL can be discharged by appropriating the said liability from the Rs.750 Crores and the balance may be directed to be refunded. This amount may be verified by the RP or by a chartered accountant appointed by him. 29. However, it is pertinent to mention herein that NBCC's Resolution Plan treats the contracts for construction (between JIL and JAL) in the following manner [@Pg.47of JAL's Additional Affidavit dated 12.05.2020]: "(vi) Resolution Applicant shall have a right to terminate the current construction contracts with Jaiprakash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder to JAL. Paragraph 189.2 is as follows: "189.2. Having comprehensively taken note of the complex and interwoven features, even while we are not inclined to countenance the other claims against JAL in these proceedings, so far as the admitted amount towards construction advance is concerned, in our view, the process had been a continuing one and admittedly an amount of INR 195 crores was due to JIL as on 31.03.2020. In the given circumstances, it would serve the interests of all stakeholders, if the proposition for reconciliation of accounts, as stated in the alternative submissions by JAL as also by the resolution applicant, be partly accepted and after reconciliation, the payable amount be made over to JIL before refunding the remainder to JAL." 22. Paragraph 190.1 and 190.2 on which repeated reliance has been placed by Learned Counsel for the parties is to the following effect: "190.1. After receiving the report from the accounting expert, the NCLT shall pass appropriate orders in the manner that, if any amount is found receivable by JIL/homebuyers of JIL, the same shall be made over to JIL from out of the said amount of INR 750 crores and accrued interest; and remainder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Any claim of JAL against the JIL which was in the nature of Operational Debt could have been claimed only in the Insolvency Resolution Process and Hon'ble Supreme Court never contemplated determination of any claim of the JAL against the JIL in pursuance of the above direction. 27. Mr. K. Venugopal, Learned Sr. Counsel for the Appellant submitted that the Adjudicating Authority failed to construe the true meaning of 'Reconciliation'. Learned Counsel for the Appellant has relied on definition of 'Reconciliation' as per Black's Law Dictionary, Sixth Edition: "Reconciliation. The renewal of amicable relations between two persons who had been at enmity or variance; usually implying forgiveness of injuries on one or both sides. In law of domestic relations, a voluntary resumption of marital relations in the fullest sense. Keller v. Keller, 122 Cal. App. 712, 10 P. 2d 541. It means something more than mere resumption of cohabitation and observance of civility, and comprehends a fresh start and genuine effort by both parties to avoid pitfalls originally causing separation. Gutmann v. Gutmann, 70 N.J. Super. 266 175 A.2d 470, 474. In bookkeeping, it is the practice of adjusting the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the directions contained in paragraphs 189 to 191.1 of this judgment. The amount, if found receivable by JIL, be made over to JIL and the remaining amount together with accrued interest be refunded to JAL in an appropriate account. It is made clear that the present matter being related to CIRP of JIL, no other orders are passed in relation to the amount that would be refunded to JAL because treatment of the said amount in the asset pool of JAL shall remain subject to such orders as may be passed by the competent authority dealing with the affairs of JAL." 30. From the final directions, as above, it is clear that the question was as to whether any amount was receivable by JIL and its Homebuyers from JAL against advance towards construction, thus, the reconciliation was only for the purpose as to what amount is receivable from JAL to JIL and such amount to be returned and handed over before refunding Rs.750 Crores with interest. The order of the Hon'ble Supreme Court did not contemplate determination of amount to which JAL may be entitled from JIL. Hon'ble Supreme Court was well aware that the proceedings have emanated from CIRP of JIL and the Hon'ble Supreme Court in exercise of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank Guarantees amounting to Rs.212 Crore issued on behalf of JIL and subsequently, invoked by lenders of JIL.". The Adjudicating Authority from Para 42 to Para 60 has examined the said issue and returned a finding that JAL is entitled to retain Rs.212 Crores out of Rs.750 Crores, which findings are questioned by learned counsel appearing for the JIL. It is to be noted that even after the above finding in favour of the JAL in the ultimate order passed by the Adjudicating Authority in Para 109 to Para 111, the said amount was not retained in favour of JAL out of Rs.750 Crores. For considering the rival submissions of the parties, we may first notice the Grant Thornton Report that is quoted in Para 46 of the order. The Adjudicating Authority has quoted the Grant Thornton Report with regard to Bank Guarantees of Rs.212 Crores. The Grant Thornton's Report with regard to Rs.212 Crores is as follows: # Nature of transaction Key issues Comments from IRP of JIL JAL's comments Our assessment B BGs issued on behalf of JAL and subsequently invoked by the lenders of JIL BGs of INR 212 crore should be treated as a Promoter's contribution to equity or debt. JIL had shown BGs as Promot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B clearly included he Bank Guarantee aggregating to Rs.212 crores which was invoked by the beneficiaries in the year 2016. It is also relevant to notice that the Hon'ble Supreme Court in "Anuj Jain, Interim Resolution Professional for Jaypee Infratech Ltd. vs. Axis Bank Ltd. & Ors., (2020) 8 SCC 401", considered challenge to the order of the Adjudicating Authority deciding preferential applications filed by the IRP. In Para 25.3.2, it was noticed that, the Bank Guarantees of Rs.212 Crore was executed by JAL to meet the DSRA obligation. Para 25.3.2 in "Anuj Jain, Interim Resolution Professional for Jaypee Infratech Ltd. vs. Axis Bank Ltd. & Ors." lays down following: "25.3.2. Now, the capacity of JAL is admittedly that of the holding company of JIL as its largest equity shareholder (with approximately 71.64% shareholding). Moreover, JAL had admittedly been the operational creditor of JIL, for an amount of approximately Rs. 261.77 crores. JAL itself maintains that it had been providing financial, technical and strategic support to JIL. in various ways. It is the assertion that apart from making investment in terms of equity shareholding to the tune of Rs. 995 crores, JAL had pledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.212 crores in reconciliation process. Thus, the amount of Rs.212 crores could not have been made part of the reconciliation process and has nothing to do with amount of Rs.750 crores nor the said amount can be deducted from the amount payable to JIL as determined by the Adjudicating Authority. Point No. (ii) is answered accordingly in following manner: Point No. (ii): The claim of Rs.212 crores relating to Bank Guarantees issued by JAL invoked by the lenders of JIL need not to be adjusted/deducted from the amount payable to JIL. POINT NO. (iii), (iv) and (v) 38. The aforesaid points were decided by the Adjudicating Authority as Issue No. (a), (d) and (e). The Adjudicating Authority held that claim of Rs.49.63 crores, Rs.2.33 crores and Rs.1.19 crore, even though they were claim of pre-CIRP, JAL is entitled to retain the amount. As noted above, with regard to all pre-CIRP dues JAL has already filed its claim in the CIRP of JIL in Form B, as extracted above. We have already while considering Point No.1 opined that reconciliation between accounts of JAL and JIL was not for purpose of finding out amount which is payable to JAL from JIL rather the determination was towards the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the dispute with regard to the Transactions relating to "RA Bills for Construction of Rs. 10.97 Crore & Rs. 1.14 Crore" and "Facility Management Bills raised by JAL on JIL of Rs. 0.15 Crore" have been mutually resolved to be shared in the equal ratio between the parties. The minutes of the meeting dated 24.12.2021 is taken on record. The said issues are resolved as per the agreement above and, Ordered accordingly." 41. The amount was mutually resolved to be shared in equal ratio between the parties, thereby mutual resolution was that Rs.6.13 crores was payable to JIL and Rs.6.13 crores was payable to JAL. As noted above, the amount payable to JAL was not to be taken into consideration and amount payable to JIL was only to be taken into consideration. As per mutual resolution, Rs.6.13 crores was receivable by JIL. The said amount has rightly been included in the amount payable to JIL in Para 110 of the order of Adjudicating Authority. We do not find any merit in the submission of Appellant and no error is committed by the Adjudicating Authority in adding amount of Rs.6.13 crores in the amount receivable by JIL. Point No. (vi) is answered as follows: Point No. (vi): Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by JIL to JAL which carried any interest nor it is submission of JIL that Interest Free Maintenance Deposit carries interest. When the amount which was receivable by JIL as found by Adjudicating Authority did not carry any interest, direction by the Adjudicating Authority to pay said amount alongwith proportionate interest was uncalled for. We, thus, are of the view that direction issued by the Adjudicating Authority in Para 111 for payment of proportionate interest is unsustainable. Point No. (vii) is answered accordingly: Point No. (vii): The direction of the Adjudicating Authority for payment to JIL/Home-Buyers of JIL of Rs.649.52 Crores with proportionate interest is unsustainable. POINT NO. (viii) 46. The JIL has claimed that Rs.70.89 crores was towards Land Swap Deal which was not accepted by the Adjudicating Authority. The Adjudicating Authority had dealt the said claim of the JIL from Para 78 to 101. The claim and Report of Grant Thornton is extracted in Para 79 of the Adjudicating Authority, which is to the following effect: "79. At this stage, we would like to visit the findings of GT on this objection raised by JIL, which is reproduced overleaf for the sake of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following observations: "94. From the above, it is observed that the Sub-Lease Deeds dated 27.04.2016 nowhere specify that the term arrangement/agreement is used in the context of construction. Therefore, we are unable to accept this plea that the liability of JAL with respect to construction was required to be adjusted. Hence, except for the sub-lease deed dated 24.06.2016, we find that none of the sub-lease deeds had any relation to construction. 95. JAL has contended that the amount of Rs 70.89 Crores is a "trade receivable" and it has nothing to do with the construction. To support its contention, it has relied upon the Balance Sheet of JIL for the Financial Year 2020-2021, the relevant extract of which is reproduced below - Rs. In Lakhs Particulars As at 31st March 2021 As at 31st March 2020 Less: Provision For Expected Credit Loss - on doubtful trade receivables (3,947.21) (3,567.04) 20,601.51 22,620.36 Less: Transferred to Non-Current Trade Receivables 2,000.00 20,601.51 20,620.36 Trade receivables include: Jaypee Institute of Information Technology 2,000.00 2,000.00 Jaiprakash Associates Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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