NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Company Appeal (AT) (Insolvency) No. 1392 of 2019

(Arising out of Order dated 25^th November, 2019 passed by the

Adjudicating Authority (National Company Law Tribunal), Mumbai

Bench, Mumbai in CP (IB)- 2803/MB/2019)

IN THE MATTER OF:

Amitabh Kumar Jha

...Appellant

Vs.

Bank of India & Anr.

...Respondents

Present:

For Appellant: - Mr. Krishnendu Datta, Mr. Nikhil

Chawla, Mr. Aditya Panda and Mr. Jaydeep Krol,

Advocates.

For Respondents:- Mr. Anant A. Pavgi and Mr.

Siddhartha Nagpal, Advocates for IRP.

Mr. Abhishek Singh and Mr. J. Amal Anand for Banks.

Mr. I.P.S. Oberoi, Advocate for R-1.

Mr. D. Lalitha and Mr. Deepak, Advocates.

J U D G M E N T

Bansi Lal Bhat, J.

Through the medium of this appeal, Sh. Amitabh Kumar Jha, the

Director of ‘TD Toll Road Private Limited’- (‘Corporate Debtor’) seeks to

assail the impugned order dated 25^th November, 2019 passed in CP (IB)-

2803/MB/2019 by virtue whereof the Adjudicating Authority (National

Company Law Tribunal), Mumbai Bench, Mumbai admitted the

application under Section 7 of the Insolvency and Bankruptcy Code,

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Company Appeal (AT) (Insolvency) No. 1392 of 2019

2016 (“I&B Code” for short) filed by the ‘Bank of India’ (‘Financial

Creditor’) slapping Moratorium on the ‘Corporate Debtor’ besides

appointing the ‘Interim Resolution Professional’. The impugned order is

challenged primarily on the ground that the admission of application by

the Adjudicating Authority has unjustly tilted the balance in favour of

the ‘Financial Creditor’ to the detriment of all other stakeholders which

is designed to defeat the object of the ‘I&B Code’.

2.

For appreciating the issue raised in this appeal, a brief reference

to the factual matrix of the case is inevitable. The ‘Financial Creditor’-

‘Bank of India’ approached the Adjudicating Authority with an

application under Section 7 of the ‘I&B Code’ seeking initiation of the

‘Corporate Insolvency Resolution Process’ on the ground that the

‘Corporate Debtor’ committed default on 16^th July, 2019 to the extent of

Rs. 21,68,44,477/-. It was asserted in the application that the

‘Corporate Debtor’ is a Special Purpose Vehicle setup by ‘Reliance

Infrastructure Limited’ for the purpose of executing the project awarded

to it by ‘National Highways Authority of India’ for four laning of Trichy-

Dindigul Road in Tamil Nadu. The ‘Corporate Debtor’ approached the

‘Financial Creditor’ besides other lenders for financial assistance. A

Common Rupee Loan Agreement came to be executed by the ‘Corporate

Debtor’

along

with

‘Canara

Bank’,

‘Corporation

Bank’,

‘India

Infrastructure Finance Company Limited (IIFCL)’, ‘Oriental Bank of

Commerce’ and ‘UCO Bank’ with ‘Canara Bank’ acting as the lenders’

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Company Appeal (AT) (Insolvency) No. 1392 of 2019

agent and security trustee. The ‘Financial Creditor’ i.e., ‘Bank of India’

advanced loan of Rs. 25 Crores to the ‘Corporate Debtor’ with other

lenders as members of consortium advancing different amounts.

According to ‘Bank of India’, the ‘Corporate Debtor’ failed to clear the

outstanding liability of Rs. 21,68,44,477/-, in respect whereof a

Demand Notice was issued on 12^th November, 2018 specifying that the

date of classifying the account as Non-Performing Asset as 29^th October,

2018. It appears that the factum of default was not disputed by the

‘Corporate Debtor’ before the Adjudicating Authority as emerges from

paragraph 8 of the impugned order. However, the ‘Corporate Debtor’

raised the contention before the Adjudicating Authority that since it had

faced difficulties in implementing the project and was entitled to

restructure the loan, it had proposed a ‘Resolution Plan’ to the lenders

who appointed ‘Ernst and Young Merchant Banking Service’ to evaluate

the same, but before the ‘Resolution Plan’ could be disc