Union Of India vs Infrastructure Leasing And Financial Services Ltd. & Ors.

These above Applications substantially makes the same prayers. We shall notice the prayers in I.A. No. 133 of 2020 which prayer is to the following effect:

Learned Sr. Counsel-Mr. Ramji Srinivasan appearing for IL&FS submits that this Tribunal vide its earlier Order dated 29^th May, 2019 has already refused invocation of bank guarantees which order has already been approved on 12^th March, 2020. It is submitted that the invocation of bank guarantees shall be subject to the resolution plan which is still under consideration by the Adjudicating Authority.

In view of the Orders which have been passed by this Tribunal refusing invocation of bank guarantees, we are of the view that prayer made in the above applications for invocation of the bank guarantees can not be accepted.

We are further of the view that the Bank Guarantees should be kept alive so as to abide by the result of the final resolution. Appropriate steps for renewal of the Bank Guarantees may be taken.

In view of the above, the Banks may keep the Bank Guarantees alive. All these Applications (I.A. No. 133 of 2020, 817-818 of 2021 and 3498-3499 of 2022) are disposed of, accordingly.

These Applications have been filed praying for clarification of the Order dated 15^th October, 2018 as well as the Order dated 12^th March, 2020 in respect of Bank Guarantees submitted by the IL&FS Engineering and Construction Limited through PNB/SBI/Bank of India.

On 2^nd March, 2022, this Tribunal has passed an Order directing bank to extend the validity of the Bank Guarantees. The GAIL has filed a common affidavit on 17^th January, 2023 requesting to keep the Bank Guarantee alive until the disposal of the Appeal filed before the Hon’ble Supreme Court in Civil Appeal No. 3752 – 3754 of 2022.

Learned Sr. Counsel for the IL&FS submits that this Tribunal has passed several orders refusing the prayer for invocation of the Bank Guarantees and further directed to keep the Bank Guarantees alive which shall abide by the final resolution.

We are of the view that the order passed by this Tribunal does not need any clarification especially in view of the subsequent order. Refusing to invoke the Bank Guarantees are covered by the ambit of the orders passed by this Tribunal.

Learned Counsel for the Appellant submits that he has already challenged the Order dated 2^nd March, 2022 before the Hon’ble Supreme Court in Civil Appeal No. 3752-3754 of 2022. It goes without saying that any orders passed by this Tribunal shall be subject to any order passed by the Hon’ble Supreme Court in the above civil appeals.

With these observations, these applications (I.A. No. 1815, 1816 and 1820 of 2021) are disposed of. However, we make it clear that the Bank shall keep the bank guarantees alive.

Learned Sr. Counsel-Mr. Ramji Srinivasan appearing for the IL&FS Entities submits that he has received instruction that IL&FS is taking steps to solve the matter with the applicants and the matter is to be placed before the Board. He seeks adjournment for two weeks.

In view of the aforesaid, we list these Applications on 13^th February, 2023 at 02:00PM. Learned Sr. Counsel for the IL&FS submits that in the Proceedings filed by the IL&FS Entities, IL&FS shall take adjournment before the Adjudicating Authority.

This Application has been filed by the Jupiter Capital Private Limited a shareholder of IL&FS Technologies Ltd. (now known as Terracis Technologies Ltd.).

It is submitted by Learned Sr. Counsel-Mr. Ramji Srinivasan that after filing of the Application, the Jupiter Capital Pvt. Ltd. has exited as a shareholder of the Terracis Technologies Ltd.. It is submitted that in view of the aforesaid, this Application has become infructuous.

There is no opposition to submission made by Learned Counsel for IL&FS.

This I.A. No. 225 of 2019 is dismissed as infructuous.

This Application has been filed by the Terra Projects Pvt. Ltd. and Terra Development Pvt. Ltd..

Learned Sr. Counsel for the IL&FS seeks time to obtain instructions.

List this Application on 13^th February, 2023.

This Application has already been disposed of by this Tribunal on 28.11.2022.

This Application has been filed on behalf of B.E. Contracts Pvt. Ltd. (an Operational Creditor of IL&FS Rail Ltd.) praying for following reliefs:

Learned Sr. Counsel for the IL&FS submits that with regard to the IL&FS Rail Ltd. which is group company of IL&FS, the claims management Consultant has not yet been appointed since the matter was pending in the Supreme Court and was decided on 04^th January, 2023. It is submitted that as soon the claims management consultant is appointed, Applicant shall submit its claim.

Recording the aforesaid statement on behalf of Learned Counsel for the Respondent, we dispose of this Application, accordingly.

These Applications have been filed on behalf of ICICI Bank Limited for and on behalf of consortium of lenders of IECCL and I.A. No. 4009 of 2022 has been filed by the ICICI Bank praying for appropriation of money in escrow account of the IECCL.

Learned Counsel for the Applicant submits that the Appellant being secured creditors the amount lying may be permitted to be appropriated by the Bank.

Learned Counsel for the IL&FS submits that there are some Board Resolution in respect of this entity. He submits that Committee of Creditors meeting has already been held of which the Applicant is part of it.

In view of the above, we adjourn these Applications for 13^th February, 2023. Learned Counsel for the Respondent shall update about the steps taken in meantime.

Rejoinder-Affidavit may be filed in I.A. No. 4009 of 2022 within two weeks.

I.A. No. 557 of 2022 has been filed by the IL&FS Energy Development Corporation Ltd. praying for following relief:

Reply has been filed by the Assistant Commissioner of Income Tax. It is submitted by Learned Counsel for the Respondent that amounts for which notice dated 17.02.2022 has been issued pertain to the year 2017-18 and 2018-19 and that was prior to passing of order dated 15.10.2018 hence there shall be no restraint on the recovery of the amount by the notice dated 17.02.2022.

Learned Counsel for the IL&FS submits that order dated 15^th October, 2018 clearly prohibits any person from recovery of any amount and/or to take any proceeding to institute or continue hence the notice dated 17.02.2022 issued by the Income Tax Department is clearly not in accordance with order dated 15.10.2018. It is submitted that resolution of the entity is at advance stage and the amount lying in the bank is not made available for the utilisation for any interim distribution/final resolution in compliance of the orders passed by this tribunal, the whole purpose of final resolution shall be frustrated.

Considering the submissions of Learned Counsel for the parties, we are of the view that order dated 15.10.2018 clearly prohibited any recovery from the IL&FS entities and notice of attachment shall come in the way of final resolution which has already been directed by the Order dated 12^th March, 2020. We thus are of the view that attachment imposed by the notice dated 17.02.2022 be lifted to enable the amounts to be part of the final resolution / interim distribution. In so far as the claim of the assistant commissioner of income tax-Respondent are concerned, the same shall be taken care in the final resolution in accordance with law. The attachment vide notice dated 07.02.2022 is directed to be lifted.

I.A. No. 557 of 2022 is disposed of, accordingly.

This application has been filed on behalf of Gujarat Integrated Maritime Complex Pvt. Ltd.

It is submitted that in the said Application the notice issued by the Income Tax Department is dated 3^rd February, 2022 and other facts and submissions are same as has been noticed in I.A. No. 557 of 2022.

This Application is allowed and notice dated 3^rd February, 2022 is directed to be set aside and the Application stands disposed of.

This is an Application filed by the Union of India praying for various directions. This I.A. was heard by this Tribunal and detailed order was passed on 31^st May, 2022 permitting the Interim Distribution as per the directions issued in the Application at paragraph 18. It is submitted that at the time of passing of the Order dated 31^st May, 2022 the entities with regard to which the distribution was sought were the entities reflected in Annexure 6 except those excluded.

Learned Counsel for the Union of India submits that in view of the fact that further amounts have now been available for distribution, the Order may be extended to all entities for which amounts are available except the excluded entities as contained in paragraph 18(vi).

Shri Bajaj, Learned Counsel for the Applicant pointed out that Rapid Metro Rail Gurgaon Sought Limited and Rapid Metro Rail Gurgaon Limited issues have been resolved finally and hence there is no necessity of the distribution to said entities. Mr. Bajaj has also referred to paragraph 11 of the Order where his submission was noted that as regards the payment already lying in the Escrow Account/ FDR drawn out if the Escrow Account with lead Bank (Canara Bank), the same may be dealt with as per the interim distribution formula suggested in I.A No. 586/2022. It is, however, prayed that any amount received at a later date, on account of termination payment or out of the outcome of the arbitration proceedings may kindly be ordered to be dealt separately.

It is submitted that directions in Paragraph 11 has not been taken into consideration and no amount pertaining to the lead bank-Cananra Bank has been dealt with nor submissions were taken into consideration and no distribution took place.

Learned Counsel for the Union of India and Learned Counsel for the IL&FS submits that steps shall be taken by the Board taking into consideration the request/statement recorded in paragraph 11 of the Order.

In view of the submissions of learned counsel for the parties, in continuation of the Order dated 31^st May, 2022, we permit the interim distribution with regard to all entities except excluded entities in paragraph 18(vi)(a)(d). With regard to entities mentioned in paragraph 18(vi)(b)and (c) issues have already been finalised. Let appropriate steps be taken for distribution as directed above with all entities except as above and steps taken be brought on record by means of an Affidavit by the next date.

List this Application on 13^th February, 2023.

This I.A. No. 924 of 2022 has been filed by Coastal Marie Constructions and Engineering Ltd.

The Applicant seeks time to file Rejoinder-Affidavit to the Reply-Affidavit received from the Respondent.

Let Rejoinder-Affidavit be filed within two weeks. List this I.A. No. 924 of 2022 along with I.A. No. 945 of 2019 on 13^th February, 2023.

Learned Counsel for the Applicant is permitted to file Rejoinder-Affidavit within three days.

Mr. Arun Kathpalia, Sr. Advocate submits that affidavit has been filed vide Diary No. 40514.

Mr. Arun Kathpalia, Sr. Advocate further submits that Affidavit in Reply has been filed to the Affidavit filed by the IL&FS vide diary No. 40912 which be listed on 13^th February, 2023 and Affidavit filed vide diary no. 42605 be also placed on record.

Both the parties are at liberty to file Additional Affidavit brining further materials on record.

List on 13^th February, 2023.

List on 13^th February, 2023.

Learned Counsel for the Respondent submits that matter is placed before the Board for approval and after getting appropriate information will be sent to all.

List on 14^th February, 2023.

List on 14^th February, 2023.

List on 14^th February, 2023.