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TMI Blog2023 (10) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocates for ABFL ORDER Ashok Bhushan, J. We have heard Shri Arun Kathpalia, Senior Advocate with Shri Abhijeet Sinha, Learned Counsel for the Appellant, Shri Krishnendu Datta, Senior Advocate for Respondent No.1, Shri Dhruv Mehta, Senior Advocate for the Applicant in IA No.4103 of 2023, Shri Hardeep Sachdeva, Learned Counsel for the Applicant in IA No.3875 of 2023, Shri Vijay Nayar, Learned Counsel for 'Zenius Global', Shri Gaurav Mitra, Learned Counsel for the IRP, Shri Gaurav H. Sethi and Shri Deeptanshu Chandra, Learned Counsel for Homebuyers. 2. This Appeal has been filed by the Appellant- Suspended Director of the Corporate Debtor- 'M/s. Sequel Buildcon Private Limited' challenging the order dated 16.06.2023 passed by the Adjudicating Authority (National Company Law Tribunal) New Delhi Bench, Court III, by which order Section 7 Application filed by Mr. Neerav Bhatnagar (Respondent No.1) and 79 other homebuyers has been admitted. The Appeal was heard by this Tribunal on 07.07.2023, on which date, following interim order was passed:- "In the meantime, the IRP shall continue to collate the claims, however, he shall not constitute the CoC till the next date." 3. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e agreement recorded in the MoU also noticed that 'EKA Life' shall deposit a sum of Rs.20 Crores within 30 days from the order. Other directions in the order were to facilitate start of the construction and completion. IRP was also directed to keep the Corporate Debtor as a going concern. The order dated 25.07.2023 is to following effect:- "25.07.2023: In this Appeal, an Interim Order was passed on 07th July, 2023 staying the constitution of Committee of Creditors. An Affidavit has been filed in compliance of order passed on 07th July, 2023 where a Memorandum of Understanding dated 12th July, 2023 has entered with the home-buyers and the M/s. Eka Life Services which is strategic financer, detailing the terms and conditions under which construction shall be carried out by the IRP with the cooperation of the Suspended Director and their officers and employees. We take the MoU as well as Addendum on record and issue further directions for carrying out the construction: i. IRP shall ensure that constructions are carried out as per MoU and Status Report be submitted in the Court after eight weeks. ii. The Appellant shall cooperate with the Interim Resolution Professional and arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application before this Hon'ble Appellate Tribunal for terminating the 'Reverse Corporate Insolvency Resolution Process' and continuing with the CIRP process in accordance with the provisions of the IBC. ix. List this Appeal on 04th October, 2023. Interim Order to Continue. The stay of the Constitution of CoC shall continue." 5. IA No. 4103 of 2023 on behalf of 'Aditya Birla Finance Limited' was filed on 23.08.2023 where following prayers have been made:- "In view of the aforesaid facts and circumstances of the present case, it is most respectfully prayed that this Hon'ble Tribunal may be pleased to: (a) Allow the present application; and (b) Implead the Applicant to the Company Appeal (AT) (INS) No. 823 of 2023 titled Anoop Kumar Srivastava v. Neerav Bhatnagar & Anr.; and (c) Pass any other order that this Hon'ble Tribunal may deem fit and proper in the interest of justice." 6. On 24.08.2023, IA No. 3875 of 2023 was filed by 'EKA Life Limited' praying for extension of 30 days' time to infuse the interim finance amount of Rs.20 Crores. Certain other prayers were made in the Application. One of the directions was also sought for the IRP and the promoters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y do so by 3rd October, 2023. 3. Physical copy of Reply may also be filed by Eka by 3rd October, 2023. List this Appeal on 04th October, 2023." 10. In pursuance of our order dated 27.09.2023, IRP had submitted its notes/comments on 03.10.2023. Under the heading 'cost of interim finance' with regard to 'Eka Life Limited', rate of interest noticed was 18% p.a. simple interest and with regard to 'Zenius Global Media Private Limited', rate of interest noted was 15% p.a. simple interest and with regard to 'Eldeco Infrastructure & Properties Ltd.' and 'Wadhwa Group Holding Private Limited', following comment has been made:- "No details regarding interest or cost have been provided." 11. At page 4 of the notes and comments, details of various other comparison between four finance providers are given, as noted above. 12. Learned Counsel for the Appellant as well as Learned Counsel for the 'EKA Life' contends that this Tribunal has already passed an order on 25.07.2023 issuing various directions which specifically noticed the agreement of 'EKA Life' to provide interim finance of Rs.75 Crores out of which Rs.20 crores was agreed to be paid within 30 days. It is submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et and project can be completed by taking interim finance as suggested by the Appellant. 14. We may also notice that at the time when 'EKA Life' has not deposited Rs.20 Crores interim finance within 30 days, promoters have suggested another interim finance i.e. 'Zenious Global Media Pvt. Ltd.' which has also given its term sheet. 15. From the sequence of the events and submissions made by Learned Counsel for the parties, it is clear that the project of the Appellant which is 'Belvedere', Sector-79, Noida having an area of 30,000 Sq. Mtr. is a project which can be very well revived under the supervision of the IRP with the assistance and co-operation of the promoters and the strategic finance provider. 'EKA Life' a strategic project partner has offered to provide finance even before filing of this Appeal and the ground taken in the Appeal is that 'EKA Life' the strategic project partner is ready to provide interim finance of Rs.75 Crores which shall sufficient to carry out the completion of the project which will be beneficial to both homebuyers as well as the Financial Creditor. 16. Noticing the submissions and facts of the case, we have passed a detailed order on 25.07.2023 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per our direction on 25.07.2023. 23. 'Aditya Birla Finance Limited' being a Financial Creditor has undoubtedly interest in the project so that it is able to realize its dues from the Corporate Debtor. IRP along with his notes and comments filed on 03.10.2023 has brought on record a Master Agreement dated 19.09.2023 between promoters, Directors of 'M/s Sequel Buildcon Private Limited' and the IRP. In the agreement with regard to amount received in the escrow account i.e. 30% was contemplated to utilize as per paragraph 5.2 in following manner:- "The amount so received in the Escrow Account i.e., 30%, shall be utilised towards (a) CIRP cost, (b) Admin Costs (all project cost, overheads and as per RERA), (c) If ABFL consent is obtained towards sharing of security in favour of Eka and sale of unsold units, then toward the repayment of ABFL loan for a period of 18 months from the date of this Agreement, and thereafter the fund from the aforesaid account shall be used towards the repayment of ABFL's Principal amount and the Minimum Guarantee of Eka/ Third Party Lender on a proportionate basis. Provided, however, if ABFL consent is not obtained within 12 months from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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