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Judgment
Ashok Bhushan, J.
This Appeal has been filed by the Successful Resolution Applicant challenging the order dated 06.06.2023 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench- I in I.A. No. 1094 of 2023. The Resolution Plan submitted by the Appellant in the CIRP of the Corporate Debtor – Jyoti Structure Ltd. was approved by order dated 27.03.2019 and I.A. No. 1094 of 2023 was filed by the Appellant/ Applicant making following prayers:
“a)Order and direct exclusion of time period commencing from the repayment timelines stipulated under the Approved Resolution Plan up to the date of release of NFB Limits on account of delay by MIDC in the execution of the New Tripartite Agreement, and the consequent delay in the release of NFB Limits,
b)Pass any other orders and/ or directions as this Tribunal may deem fit and expedient in the facts and circumstances of the present case in the interest of justice, equity and good conscience.”
The Adjudicating Authority after hearing the parties observing that
“Further, since there a consensus between the lenders and the SRA with respect to exclusion of timelines and delayed payment, this Adjudicating Authority does not deem it fit to grant exclusion of time” dismissed the application. Aggrieved by the order, the Successful Resolution Applicant has come up in this Appeal.
We have heard Dr. Abhishek Manu Singhvi, learned counsel for the Appellant and Mr. Raunak Dhillon, learned counsel appearing for the Respondent.
The exclusion for the time was asked for by the Appellant for the period from 09.11.2021 till 23.11.2022 which was time taken for execution of new Tripartite Agreement by Maharashtra Industrial Development Corporation (MIDC). Appellant’s case before the Adjudicating Authority was that on account of non-execution of new Tripartite Agreement, the Appellant was unable to avail NFB facilities. The execution of Tripartite Agreement having been prayed for by the Appellant and time was taken by the Maharashtra Industrial Development Corporation in executing the Tripartite Agreement, the period deserved to be excluded and the Adjudicating Authority committed error in rejecting the application.
An Additional Affidavit has been filed by the Appellant in the appeal wherein in Paras 2, 3 and 4 following has been stated:
“2.The present Affidavit has been filed to place on record additional factual developments that have occurred after the filing of the captioned Appeal and are relevant for the adjudication of the Appeal by this Hon'ble Appellate Authority. The present Affidavit may be read as a part and parcel of the Appeal, the contents of which are not repeated herein for the sake of brevity.
3.Pursuant to the hearing on 12 July 2023, a Joint Lenders Meeting of the Appellant (“JLM”) was conducted on 17 July 2023 to inter alia discuss the view of the lenders on the captioned Appeal filed by the Appellant before this Hon'ble Appellate Authority. In the JLM, the lenders discussed the progress made in the process of release of NFB Limits as per the Approved Resolution Plan, however, the lenders sought a clarification from the Appellant that the exclusion shall not result in extension/modification of the repayment timelines to the assenting financial creditors. A copy of the minutes of the JLM dated 17 July 2023 are attached herewith as Exhibit A.
4.While the Appellant had, during the JLM, clarified that the captioned Appeal does not in any way seek a modification of the terms of time of redemption of the non convertible debentures (“NCDs”) under the Approved Resolution Plan, the Appellant also issued a letter dated 18 July 2023, inter alia clarifying that the exclusion sought in the captioned Appeal does not in any way modify or change the timelines for the repayments of NCDs under the Approved Resolution Plan. A copy of the letter dated 18 July 2023, is attached herewith as Exhibit B.”
Shri Raunak Dhillon, learned counsel appearing for the State Bank of India, which is the lead bank, has submitted that the State Bank of India has no objection in the relief as sought in the present Appeal subject to that there are no changes in the repayment terms of State Bank of India as envisaged in the Resolution Plan. It is further submitted that there was no consensus between the lenders and the Successful Resolution Applicant as has been observed in Para 16 of the order. Learned counsel for the Respondent has referred to Para 6 of the Additional Affidavit of the Appellant that Appellant shall clear all outstanding payments to the dissenting Financial Creditors within the originally envisaged timeline of four years i.e. November, 2025, from the date of implementation of the approved Resolution Plan.
We have considered the submissions of learned counsel for the parties and perused the record.
The prayer for exclusion was made on account of delay in execution of Tripartite Agreement by Maharashtra Industrial Development Corporation, which is an admitted fact. As stated in the Additional Affidavit, in the Joint Lenders Meeting held on 17.07.2023, the query raised by joint lenders have been duly satisfied by the Appellant, which is reflected in the Additional Affidavit filed in this Appeal.
In view of the facts as brought on the record in the Additional Affidavit and the submission made on behalf of the State Bank of India, where the State Bank of India has expressed its no objection to the prayers made by the Appellant in the I.A. subject to the conditions as has already been stated in the Additional Affidavit, we are of the view that I.A. No. 1094 of 2023 deserves to be allowed and exclusion of time period commencing from repayment timeline stipulated in the approved Resolution Plan upto the date when Tripartite Agreement was executed i.e. 23.11.2022 is allowed (i.e. from 09.11.2021 till 23.11.2022) subject to no modification of final timeline of four years for repayment. Appeal is disposed of accordingly.