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TMI Blog2022 (5) TMI 1474X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor, and is indebted to the Applicant Bank in an aggregate of amount of Rs. 7917,62,06,468/- (Rs. Seven Thousand Nine Hundred Seventeen crores sixty-two lakh six thousand four hundred sixty-eight only) including interest and penalties as on 30.11.2021, in respect of the loan facilities sanctioned by the Financial Creditor to the Corporate Debtor. 2. It is stated by the Applicant that the Corporate Debtor, pursuant to Common Loan Agreement dated 30.04.2015, Facility Agreement dated 30.04.2015 and the First Amendment Agreement to the Common Loan Agreement dated 22.05.2015 executed amongst the Applicant Bank, other lenders and the Corporate Debtor had availed four loans from the Applicant Bank aggregating to Rs. 4650,00,00,000/- (Four thousand six hundred fifty crores). Thereafter an amount of INR-900,00,00,000/- (Rs. Nine Hundred Crores) was down sold by the Applicant Bank to India Infrastructure Finance Company and the total principal loan amount granted to the Corporate Debtor by the Applicant Bank was reduced to INR 3750,00,00,000 (Three thousand seven hundred and fifty crores). 3. Further under Security Trustee Agreement dated 30.04.2015 executed amongst, inter alia, the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent appeared through Ld. Counsel and filed reply to the Application IB-29(PB)/2022 challenging it on the ground of maintainability and also filed reply to IA No. 782/2022, stating that the Application IB-29/2022 under Section 95 has been filed by a stranger to the contract-the Deed of Guarantee, and IDBI Bank has no locus standi to file the application. Respondent has submitted that the Applicant Bank has also concealed the vital fact that the Security Trustee has already filed similar application under Section 95 of IBC, 2016 i.e. (IB)-83(PB)/2022 titled (IDBI Trusteeship Services Ltd. Vs. Manoj Gaur) in which notice has already been issued by this Adjudicating Authority. As per the Respondent, the application has not been filed by Creditor but by some third-party having no privity of contract with the Respondent. Similar reply has been filed in IA-782/2022 upholding the order of 08.02.2022 on the ground that further step under Section 99 of the Code can be taken only after first deciding upon the locus of Applicant to file the Petition. Therefore, this Adjudicating Authority heard the arguments for and against the IA No. 782/2022 together with the main Application CP-IB-29/202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment containing the provisions for enforcement of Security requires that the Security Trustee may act only upon receiving unanimous written instructions from all the lenders. Para 3.4 reads as follows: 3.4 Enforcement of Security The Security created under each Security Document may be enforced on the written instructions received from a Lender/the Lenders' Agent in accordance with the provisions of the Financing Documents. Under such circumstances, the Security Trustee shall immediately, in writing, along with a copy of the written instructions received from a Lender and/or the Lenders' Agent, inform all the other Lenders of the course of action proposed to be initiated by the Security Trustee towards enforcement of Security. In the event of the Security Trustee receiving conflicting instructions from the Lenders and/or the Lenders' Agent the Security Trustee shall seek clarifications therefore from such Lenders and/or the Lenders' Agent giving such instructions and in the absence of unanimous instructions the Security Trustee shall not be obliged to act on such instructions. 14. Another important para to which our attention has been attracted is para 8.5 "Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver and hold upon trust the monies thereon for the Lenders and disburse/distribute proceeds of any Security Interest created in its favour in accordance with the provisions of the Financing Documents and the Inter Creditor Agreement; 3.9 Segregation of Funds and property Interest: Monies and other property received by the Security Trustee pursuant to this Agreement/Security Documents shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, and shall be segregated and held distinct from the Security Trustee's own monies and assets and the Security Trustee shall not be liable for any interest thereon. For the avoidance of doubt, the parties agree, acknowledge and confirm, that the monies and other assets constituting or representing Security held by the Security Trustee being trust property shall not be considered as part of the assets of the Security Trustee and shall not, in the case of bankruptcy or liquidation of the Security Trustee, be considered as its assets and shall not be available to the Liquidator, bankruptcy trustee or other creditor of the Security Trustee and such monies and properties shall be wholly exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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