JUDGEMENT

ASHOK BHUSHAN, J. This Appeal has been filed by the Promoter of the Corporate Debtor – M/s Renaissance Indus Infra Pvt. Ltd. challenging the order dated 31.03.2023 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, Court No. V admitting Section 7 application filed by the Financial Creditor – Catalyst Trusteeship Ltd. The Appellant, aggrieved by the order, has come up in this Appeal. Brief facts of the case necessary to be noticed for deciding this Appeal are:

i.

The Corporate Debtor and Altico entered and executed term sheet for a loan amount of Rs.650,00,00,000/- on 11.06.2018. On 21.06.2018, Debenture Trustee Appointment Agreement executed where Vistra ITCL was appointed as the Debenture Trustee. On 26.06.2018, a Debenture Trustee Document was executed between the Corporate Debtor, Promoters and Vistra ITCL under which 390 unlisted, secured, redeemable non- convertible debentures of aggregate value of Rs.390,00,00,000 were issued by the Corporate Debtor.

ii.

An Assignment Agreement dated 04.03.2021 was issued by Altico in favour of Respondent No.1 - Catalyst Trusteeship Ltd. and other.

-3- Company Appeal (AT) Insolvency No. 448 of 2023 iii.

Vide demand notice dated 13.07.2022, the Debenture Trustee called upon Respondent No.2 – Corporate Debtor to make outstanding payment due to Respondent No.1. The Corporate Debtor failed to make any payment of the outstanding amount.

iv.

The Corporate Debtor having committed events of default as per Debenture Trustee Document, the Respondent No.1 issued an Acceleration and Enforcement Notice dated 26.07.2022. No response was given by the Corporate Debtor.

v.

The Respondent No.1 filed Section 7 application against the Corporate Debtor on 29.07.2022. Notice was issued in the Company Petition.

vi.

A reply was filed by the Corporate Debtor. An I.A. was also filed by the Corporate Debtor on 26.11.2022 challenging the maintainability of the Company Petition.

vii.

The Adjudicating Authority vide order dated 21.03.2023 admitted Section 7 application. Aggrieved by which order, this Appeal has been filed.

2. We have heard learned counsel for the Appellant as well as learned counsel appearing for the Respondent No.1.

3. Learned counsel for the Appellant challenging the order passed by the Adjudicating Authority submits that application filed by Respondent No.1, -4- Company Appeal (AT) Insolvency No. 448 of 2023 Catalyst Trusteeship Limited under Section 7 was not maintainable and the application, if any, could have been filed only by the Debenture Trustee.

Under the Debenture Trustee Document as well as the Enforcement Notice, proceedings against the Corporate Debtor can be initiated only by the Debenture Trustee. The Respondent No.1 in its reply suppressed various vital documents. The Debenture Trustee Document read with Inter-Creditor Agreement clearly provides that it is only the Debenture Trustee i.e. Vistra ITCL who is legally entitled to take any action or declare default against the Corporate Debtor either by itself or jointly with the Debenture Holder. The Respondent No.1 has invoked Enforcement Notice dated 26.07.2022 which notice is contrary to the terms of the Inter-Creditor Agreement. The Respondent No.1 has no locus to invoke proceedings under Section 7 without prior consent of other lenders. A perusal of Clause 9.2 of the Debenture Trustee Document and Clause 5.6 of the Inter-Creditor Agreement depicts that Respondent No.1 has no locus in initiating proceedings against the Respondent No.2, which Adjudicating Authority has failed to appreciate.

4. The submissions made by learned counsel for the Appellant has been refuted by learned counsel for Respondent No.1. It is submitted that the Corporate Debtor – Appellant has not disputed the debt and default committed by the Corporate Debtor. In the reply filed before the Adjudicating Authority, debt and default is not disputed. Corporate Debtor did not issue any reply to Dema