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2023 Supreme(Online)(NCLAT) 1472
NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI I.A. No. 133,225,346,2966 of 2020 & 785, 817-818,1815, 1816,1820,2104 of 2021 & 296,427,429,557, 586,645,762,845, 924,1709,2424,3115, 3498- 3499,3579, 3844,3845,4009, 4526,4977-4978, 4867 of 2022 in Company Appeal (AT) No. 346 of 2018 IN THE MATTER OF: Union of India ….Appellant Vs. Infrastructure Leasing and Financial Services Ltd. & Ors. ….Respondents With Company Appeal (AT) No. 347 of 2018 IN THE MATTER OF: Infrastructure Leasing and Financial Services Ltd. ….Appellant Vs. Union of India & Ors. ….Respondents Present: Mr. Ramji Srinivasan, Sr. Advocate with Mr. Raunak Dhillon, Ms. Vihas Kumar Jah, Ms. Isha Malik, Mr. Nihaad Dewan, Advocate for IL&FS. Mr. Rigved Prasad, Advocate for Applicant in I.A. No. 924 of 2022. Mr. Abhirup Das Gupra, Ishaan Duggal, Pathik Choudhury, Advocates for Tata Power and Pramerica Life Insurance. Mr. Arun Kathpalia, Mr. Sandeep Singhi, Mr. R. Sudhinder, Mr. Gaurav Mathur, Ms. Ekta Bhasin, Ms. Aastha Trivedi, Advocates for the Applicant in I.A. No. 2966 of 2020 and Appellant in CA(AT) No. 177 of 2022. Mr. Aditya Sikka, Ms. Vasudha Vijayshat, Advocates for UoI. Mr. Ramji Srinivasan, Sr. Advocate with Mr. Kuber Dewan, Ms. Neeharika Aggarwal, Ms. Trisha Ray Chaudhuri, Mr. Kaustubh Srivastava, Advocates for IL&FS and I.A. No. 557 & 645 of 2022. Mr. Siddhanth Pandey, Adovdate for PFL, EPF, PFCEGF, PPLSMF. Mr. N.L. Ganapathi and Mr. Sidhant Garg, Advocates for GAIL (I) Ltd. in I.A. No. 1815, 1816 and 1820 of 2021. Mr. Mahesh Agarwal, Mr. Amar Dave, Mr. Ankur Saigal, Advocates for Terra Infra Development in I.A. No. 2424. Mr. Mahesh Agrawal, Mr. Ankur Saigal, Mr. Shivam Shukla, Advocates in I.A. No. 586 of 2022. Chilanjivi S., Dhurav Shah, Apoorva Kaushik, Geetika Sharma, for HDFC in I.A. No. 557 of 2022. Mr. Vikas Kumar, Mr. Manish Paliwal, Advocates for Intervener Applicant (BEL). Mr. Manish Singhvi, Sr. Advocate with Mr. Pawan Kr. Bansal, Mr. Ahsan, Advocates in I.A. No. 762 of 2022. Saransh Jain, Abhishek Kumar, Advocates for TITAN in C.A. (AT) No. 347 of 2018. Mr. Mahesh Agrawal, Mr. Shivam Shukla, Ms. Geetika Sharma, Advocate in I.A. No. 3499 of 2022. Mr. Sanjay Bajaj, Urwick Hans, Mayank Jain, Advocates for Canara Bank in I.A. No. 586 of 2022 and in I.A. No. 1709 of 2022 for PNB and in I.A. No. 3115 of 2022 for PNB. Ms. Anannya Ghosh, Ms. Bhabne Das, Ms. Doel Bose, Applicants in I.A. No. 3579 of 2022. Mr. Gaurav Juneja, Mr. Aayush Jain, Advocates in I.A. No. 4977-4978 of 2022. Mr. P. Nagesh, Sr. Advocate with Mr. Anand Mehta, Ms. Bani Brar, Mr. Akshay Sharma, Advocates in I.A. No. 296, 427, 429 of 2022 for the Applicant. Mr. Aayush Agarwala, Siddham Nahatta, Bhumika Sharma, Advocate for AXIS Bank (R3) in I.A. No. 645, 3499 of 2022. Advocate Munindra Dvivedi, Advocate Divya Bhalla, for NHAI in I.A. No. 4526 of 2022. Ms. Kavita Sarin, Ms. Niharica Khanna, Advocates for ECIPL in I.A. No. 827 of 2019. Mr. Rajiv S. Rly, Mr. Avrojyoti Chatterjee, Ms. Jayasree Saha, Mr. Siddharth Dhingra, Advocate for UCO Bank & Canara Bank. Mr. Krishnendu Datta, Sr. Advocate with Mr. Dhruv Wahi, Rakshit Jain, Advocates for Applicant in I.A. No. 363 of 2019. Mr. Udit Seth, Ms. Priya Kanwat, Advocates for KVNL Applicant in I.A. No. 785-786. Mr. Sanjay Kapur, Ms. Megha Karnwal, Mr. Surya Prakash, Ms. Aastha Gumber, Advocates for SBI in I.A. No. 3579 of 2022 and Mr. Sanjay Kapur, Ms. Megha Karnwal, Ms. Akshata Joshi, Mr. Arjun Bhatia, Advocates for SBI in I.A. No. 4867 of 2022. Mr. Abhishek M. and P. Gupta, Advocate in I.A. No. 557, 645 of 2022.Mr. Krishnendu Datta, Sr. Advocate with Ms. Misha, Ms. Mahima Sareen, Mr. Rahul Gupta, Mr. S. Bose, Advocates for Applicant and Petitioner in I.A. No. 845 of 2022, I.A. No. 4009 of 2022 and Review App. No. 03 of 2022. Mr. Arun Kathpalia, Sr. Advocate with Mr. Sandeep Singhi, Mr. R Sudhinder, Mr. Guarav Mathur, Ms. Ekta Bhasin, Ms. Aastha Trivedi, Advocates. Mr. Abhishek Puri, Ms. Surbhi Gupta, Mr. Sahil Grewal, in I.A. No. 2966 of 2020 for HDFC. Mr. Gopal Jain, Sr. Advocate with Mr. Akshat Hansaria, Mr. Tanmay Arora, Advocates. Mr. Ritik Gupta, Mr. Kunal Verma, Advocates. Mr. Arun Kathpalia, Mr. Manmeet Singh, Ms Anjali Dwivedi, Ms. Diksha, Advocates for ARIL and L&T Infra Credit, Ms. Pallavi Parmar, Advocate for Applicant in I.A. No. 4977 & 4978 of 2022. Mr. Manish Singhi, Sr. Advocate with Mr. Pawan Kr. Bansal, Mr. Absan, Advocate in i.a. No. 762 of 2022.
ORDER
19.01.2023: 1. I.A. No. 133 of 2020, I.A. No. 817-818 of 2021 & I.A. No. 3498-3499 of 2022 (i) 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:
- “a.
- Allow the present application and modify the order dated 29.05.2019 while directing SBI, Allahabad Bank, Axis Bank and ICICI Bank that all such bank guarantees as stated in Paragraph 3 of I.A. No. 2077 of 2018 be duly honoured upon invocation and/or encashment by the Applicant herein; and/or b….” (ii) Learned Sr. Counsel-Mr. Ramji Srinivasan appearing for IL&FS submits that this Tribunal vide its earlier Order dated 29th May, 2019 has already refused invocation of bank guarantees which order has already been approved on 12th 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.
- (iii) 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.
- (iv) 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.
- (v) 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.
2. I.A. No. 1815, 1816 and 1820 of 2021 (i) These Applications have been filed praying for clarification of the Order dated 15th October, 2018 as well as the Order dated 12th March, 2020 in respect of Bank Guarantees submitted by the IL&FS Engineering and Construction Limited through PNB/SBI/Bank of India.
(ii) On 2nd 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 17th 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. (iii) 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.
(iv) 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.
(v) Learned Counsel for the Appellant submits that he has already challenged the Order dated 2nd 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.
(vi) 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.
3. I.A. No. 296, 427, 429 and 762 of 2022 (i) 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. (ii) In view of the aforesaid, we list these Applications on 13th 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.
4. I.A. No. 225 of 2019 (i) This Application has been filed by the Jupiter Capital Private Limited a shareholder of IL&FS Technologies Ltd. (now known as Terra
