9911796707
TMI Blog2019 (5) TMI 1799X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act, 1956 and was incorporated on 19.10.2007. The identification number of the Corporate Debtor is U45200DL2007PLC169191 and its registered office is situated at B-292, Chandra Kanta Complex, Shop No. 2 and 3, Near Metro Pillar No. 161, New Ashok Nagar, New Delhi-110096. 3. As per the averments, the Financial Creditor through various credit facilities has granted a loan for a sum of INR 200 crores to certain group/ related parties of the Parent Company-M/s. Era Infra Engineering Private Limited namely Hyderabad Ring Road Project Private Limited (for brevity 'HRRPPL), Apex Buildsys Limited (for brevity 'ABL'), Dehradun Highways Project Limited (for brevity 'DHPL'), Gwalior Bypass Project Limited (for brevity 'GBPL') apart from the Corporate Debtor-Era Infrastructure India Limited (for brevity 'EIIL'). For the aforesaid facilities granted by the Financial Creditor, the Parent Company-M/s. Era Infra Engineering Private Limited had furnished various securities and contractual comforts to the Financial Creditor. The detail of such facilities granted by the Financial Creditor along with the security and contractual comforts provided by the Parent C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deal with or divest 30% equity share capital of EIIL held by it (NDU Shares), and deposit such number of shares in a designated trust and retention account (NDU). In addition to that, the Parent Company-M/s. Era Infra Engineering Private Limited executed an irrevocable power of attorney in favour of the EIIL Security Trustee, authorizing it to, inter alia,sell, transfer, assign, dispose of or encumber the NDU Shares on the terms and conditions specified in the NDU (POA). Afterwards the applicant, the Parent Company-M/s. Era Infra Engineering Private Limited and the EIIL Security Trustee entered into a designated account agreement dated 16.06.2011. The Parent Company-M/s. Era Infra Engineering Private Limited through said designated account agreement agreed to open a trust and retention account with the applicant as required under the NDU for deposit of NDU shares. 3. Restructuring of EIIL RTL Facility: Restructured RTL Facility and FITL Facility 1. EIIL started defaulting in making payment towards the interest and principal amounts of the EIIL RTL Facility. As a consequence, and in light of the RBI guidelines, a Joint Lenders Forum was formed on 30.04.2014, comprising of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id demand notices, EIIL and/or the Parent Company-M/s. Era Infra Engineering Private Limited failed to repay the outstanding amounts to the applicant. On account of persistent defaults, the account of EIIL was classified as an NPA on 28.09.2017 w.e.f. 30.06.2015 by the applicant. 3. Subsequently the applicant exercised its option/ right under the Loan Purchase Agreement to sell the Restructured Facilities at a purchase price of INR 199.5 crores to the Parent Company-M/s. Era Infra Engineering Private Limited, vide a loan purchase notice dated 15.11.2017 on the diverse grounds firstly not to maintain the debt service reserve requirements of INR 6.43 crores by the EIIL including others; secondly not to provide 30% of the equity share capital of EIIL, as security by the Parent Company-M/s. Era Infra Engineering Private Limited and lastly not to adhere to the payment schedule under the Restructured facilities. In view of the above, the applicant called upon the Parent Company-M/s. Era Infra Engineering Private Limited to purchase the Restructured facilities and pay the loan purchase exercise price within 10 days from the date of the Loan Purchase Notice. 4. Upon failure of the Pare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Parent'. At this stage it would be profitable to read the compatible terms and conditions agreed into by the parties which are as under: Companies Company 1- Haridwar Highways Projects Limited, India Company 2- Dehradun Highways Projects Limited, India Company 3- Bareilly Highways Projects Limited, India Each of the above company individually shall be referred to as a 'Company' Parent Era Infra Engineering Limited ("EIEL"), a company incorporated under the laws of India ---------------- --------------------- Guarantor (s) Mr. H.S. Bharana ("Personal Guarantor") or any other entity that is required to provide a guarantee for the purpose of creating/ perfecting the security/ contractual comfort as mentioned below in the 'Security'/ Contractual Comfort' clause. Shortfall Undertaking Providers Any person/ company under than the Parent and Guarantor(s) providing contractual comfort as mentioned in below in the 'Contractual Comfort' clause. Obligors The Borrower and the Parent. ------------- ------------- 5. It is pertinent to mention that the Corporate Insolvency Resolution Process was initiated in respect of the Parent Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involves three parties: creditor, surety, and principal-debtor. A contract of guarantee must, therefore, involve a contract to which all those parties are privy. A guarantee is an undertaking to indemnify, if some other person does not fulfil his promise. The liability under a contract of guarantee is conditional on the default of the principal-debtor, and hence does not amount to a 'promise to pay'. It is evident from the facts of this case that Principal Debtor are EIIL and DHPL. The Corporate Debtor is the 'Surety' and the applicant is 'Creditor'. The essential ingredients of contract of guarantee are also fulfilled as is patent from the preceding paras. As per various clauses surety has stood guarantee for the facilities given in case of default by the Principal Debtor. The default has occurred and the amount is recoverable from the Corporate Debtor. If that be so then the Resolution Professional was not justified to decline the claim made by the applicant." 7. Allowing the applicant's-the ICICI Bank's application, we had passed the following directions: "1. The Corporate Debtor is liable to repay the arnount granted by the ICICI Bank Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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