O R D E R

Per : CORAM

I.A. 2737 of 2026 IN C.P. (IB) No. 2205 of 2019

1) This is an Interlocutory Application by the Liquidator of Jet Airways (India) Limited (hereinafter referred to as Corporate Debtor) inter alia seeking directions to refund the advance payments aggregating to $ 92,129,387 made by the Corporate Debtor to the Boeing Company towards procurement of Aircrafts by the Corporate Debtor. It is submitted by the Applicant that the Advance Payments constitute a part of the Liquidation Estate of the Corporate Debtor within the meaning of Section 36 of the Insolvency and Bankruptcy Code, 2016 ("Code") and the Respondent is obligated to refund the same.

2) The brief facts leading to the filing of this Application are as under:

i. In 2013, the Corporate Debtor and the Respondent entered into Purchase Agreement No. PA-03781 and Purchase Agreement No. PA-3000 for purchase/ sale of Boeing Model 737-8 Aircrafts and Boeing 787-9 Aircraft, respectively (hereinafter referred as Purchase Agreements).

ii. These Agreements have not been annexed to this Application owing to the Respondent's concern in relation to the confidentiality of certain proprietary data of the Respondent contained therein.

iii. Pursuant to the Purchase Agreements, the Corporate Debtor deposited sum of $ 92,129,387 with the Respondent as Advance Payment / pre-delivery payments which was acknowledged by the Respondent.

iv. The Corporate Debtor was unable to pay certain amounts due to the Respondent under Purchase Agreements because of certain difficulties. On account of said delay in payments, the Respondent issued a Notice of suspension dt. 22.05.2019 purporting to suspend performance of all the obligations of the Respondent under Purchase Agreements. The Purchase Agreements do not provide the Respondent with explicit rights or ability to suspend the performance of their obligations under the Purchase Agreements unless the Agreement is terminated.

v. Later, in June 2019, the Corporate Debtor was admitted into Corporate Insolvency Resolution Process (CIRP).

vi. The Resolution Professional, upon verification of the claim made by the Respondents, admitted an amount of Rs. 721,19,24,370/- which increased to 873,78,79,632/- in liquidation process on account of currency fluctuation, and this claim amount represented the unpaid instalments of Advance Amount of pre- delivery payment obligation due under the Purchase Agreements and for certain Software and services. The Respondent had made a claim of $ 275,333,451.69.

vii. The Respondents are alleged to have not responded to the query of the Resolution Professional about Mutual Credits, Mutual Debts or other Mutual Deals between the Corporate Debtor and the Liquidator for the purpose of set off.

viii. The erstwhile Resolution Professional, on 27.01.2020, addressed a letter to the Respondent inter alia informing the Respondent about the initiation of CIRP against the Corporate Debtor and requested for return of Advances lying with the Respondent. The Respondent responded to the request inter alia disputing the claim and seeking further particulars despite knowledge in the receipt of the Advance Payment vide Exchange of E-mails between them. Thereafter, there were exchange of E-mails between the Resolution Professional and the Respondent. The Respondent has raised contest to the Corporate Debtor's interpretation of the Contractual Provisions.

ix. The Respondent in December 2020, issued a Notice of termination purporting to terminate the Purchase Agreements, citing the Corporate Debtor's alleged material breach arising from non-performance and pursuant to Article 10.i of the Aircrafts General Terms Agreement No. AGTA-JPL.

x. In the meantime, the Hon'ble Supreme Court directed that the Corporate Debtor be taken into Liquidation as the implementation of the approved Resolution Plan failed.

xi. The Respondent terminated the Purchase Agreements after the Corporate Debtor has already entered into the Liquidati