- (1.) This CP is filed for mooting the Corporate Insolvency Resolution Process (CIRP) under the provisions of Insolvency & Bankruptcy Code (IBC), 2016 in relation to the respondent company named as 'Corporate Debtor'. The Petition has been has been filed by a Financial Creditor namely Indian Bank through its authorized person being the Assistant General Manager, ARMB-Delhi, World Trade Centre, Babar Road, New Delhi vide Power of Attorney dated 30.6.2006 annexed as Annexure-A to the above Petition.
(2.) The following facts can be ascertained one perusal of the application and also on the representation of the Learned Counsel for the Petitioner namely: "The Corporate Debtor named above is a (Special Purpose Vehicle) SPV company specifically incorporated in the year 2007 for the purpose of generating and distribution of electricity. Pursuant to its objects and for putting up a electricity generation plant in Arunachal Pradesh it had approached the Financial Creditor for multiple credit facilities in the form of term loan as well as non-fund based facilities as supplement to term loan. Request for financial facilities by the Corporate Debtor was accepted by the Financial Creditor vide sanction letter dated 30.7.2010, which comprised of term loan to the extent of Rs. 200 crores and non-fund based loan facilities of Rs. 100 crores and the sanction was valid for a period of 6 months with pre disbursement conditions as detailed in the sanction letter. Since the pre-disbursement conditions were not met by the Corporate Debtor, request to extend the validity of the sanction letter dated 30.7.2010 was sought by the Corporate Debtor vide letter dated 30.1.2011 and 1.2.2011. On 11.4.2011 based on the request of the Corporate Debtor for urgent project implementation expenses, a sum of Rs. 200 crores for a duration of 6 months was sought by the Corporate Debtor from the Financial Creditor, and acceding to the said request of the Corporate Debtor, as compared to the earlier sanction letter, a term loan of Rs. 269 crores, short-term loan of Rs. 200 crores and non-fund based facilities such as FLC/ILC/BG/LOC were sanctioned in a sum of Rs. 100 crores. The short-term loan facility granted was in the nature of bridge loan, in order to assist the Corporate Debtor, to meet the urgent project expenses till the disbursal of the regular funding for the project from the consortium of lenders. As a security to the short-term financial facilities, pari pasu charge on all the immovable assets of the company, both present and future, as well as inter alia, corporate guarantee of one M/s. Athena Infra Projects Ltd. was given and pledge of shares in the Corporate Debtor held by M/s. Athena Infra Projects Ltd. in Athena Energy Ventures Private Limited along with its promoters to the tune of Rs. 150 crores was also offered as collaterals. Corporate Debtor in acceptance of revised sanction letter dated 6.6.2011 had executed documents in favour of the financial creditor, including an agreement for bridge loan dated 17.6.2011, in relation to Rs. 200 crores sanctioned by the Financial Creditor towards the bridge loan repayable within a period of 6 months from the date of first disbursement of loan. Various other documents have also been executed, all of which have been annexed along with the Petition, according to the submission of the Financial Creditor. The sum of Rs. 200 crores as sanctioned and approved by the Financial Creditor had been disbursed to the Corporate Debtor which it is claimed by the Financial Creditor is evidenced by letter dated 20.10.2011 wherein it has also been acknowledged by the Corporate Debtor at paragraph 1, Annexure A-22 of the Petition, as follows: At the outset we would like to thank you for sanctioning the short term loan assistance of Rs. 200 Crs to 1750 MW Demwe Lower HEP. We have utilized the entire short term loan of Rs. 200 Crs sanctioned by Indian Bank towards project implementation expense. As you are aware, we have executed the Common Loan Agreement with consortium lenders for the loan component of Rs. 9659 Crs on 9th September 2011."
(3.) However, the Corporate Debtor did not repay the short-term loan/bridge loan within the period of 6 months as undertaken by it, and instead, submitted a revised proposal vide Annexure A-22 of the Petition and the revised proposal was duly taken into consideration by the Financial Creditor and accordingly sanction, it is claimed by the Financial Creditor, was further revised as follows: JUDGEMENT_397_LAWS(NCLT)5_2017_1.html Despite the above revised sanction letter dated 12.03.2012 by the Financial Creditor, Corporate Debtor failed to repay the loan availed by it as a short-term loan and instead sought for extension of time for repayment of the same vide letters dated 14.06.2012, 21.06.2012 and 4.7.2012. Heeding to the repeated request of the Corporate Debtor, the Financial Creditor it is averred, had conditionally accepted the request and the time limit for repayment was extended upto 28.02.2013 upon the execution of the additional securities. However, instead of repaying the amount within the extended period, Corporate Debtor vide letter dated 25.02.2013 sought for another extension for a period of 2 months upto 31.05.2013 in order to enable it to repay the short term loan. The Financial Creditor, taking into consideration the above request of the Corporate Debtor for further extension, granted time till 28.02.2014 for repayment of the short-term loan and for early closure of the conditions prescribed originally and subsequently revised from time to time for availing financial facilities as granted to the Corporate Debtor vide letter dated 17.06.2013. However, despite the cooperation and support extended by the Financial Creditor to the Corporate Debtor and despite personal visits and reminders, Corporate Debtor failed to repay the amounts due to the Financial Creditor which forced it to classify the accounts of the Corporate Debtor as non-performing asset (NPA) on and from 31.5.2013 in accordance with the instructions/circular of the Reserve Bank of India.;