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TMI Blog2023 (10) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... offered to provide finance even before filing of this Appeal and the ground taken in the Appeal is that EKA Life the strategic project partner is ready to provide interim finance of Rs.75 Crores which shall sufficient to carry out the completion of the project which will be beneficial to both homebuyers as well as the Financial Creditor. Having passed a detailed order on 25.07.2023 for carrying out the construction in the project as per directions contained therein, there are no reason to modify the said direction and now permit any other interim finance provider who has now come up offering to provide interim finance to the project. The cost of interim finance as offered by EKA Life is now equal to the one offered by Zenious Global Media Pvt. Ltd. - it is satisfying that there are no grounds made out to issue any modification of our order dated 25.07.2023 and we are of the view that the construction of the project need to be proceeded further as per the direction on 25.07.2023. After commencement of the construction in the project, receivables in the project have to be deposited in the RERA designated account i.e. 70% and 30%. Although in the Master Agreement, as n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - In the meantime, the IRP shall continue to collate the claims, however, he shall not constitute the CoC till the next date. 3. In the Appeal filed by the Appellant, the Appellant has come up with the case that Appellant under the supervision of the IRP are desirous of completing the construction and a Strategic Project Partner- EKA Life Limited has offered to provide interim finance of Rs.75 Crores which shall be utilized for construction of project. It was contended that with the introduction of Strategic Partner, Corporate Debtor shall complete the project under the supervision of the IRP in a time bound manner which shall be beneficial to the homebuyers/allottees and to the creditor without having to undergo any haircut. It is useful to extract the case set up by the Appellant in the Appeal. In very synopsis of the Appeal, following has been stated at page 6:- It is pertinent to mention that the appellant has arranged for KGK reality (India) Private Limited through its associate company EKA Life Limited as a Strategic Project Partner( Eka ) for settlement of creditors, completion of the project The Belvedere and for revival of the Corporate debtor company. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r MoU and Status Report be submitted in the Court after eight weeks. ii. The Appellant shall cooperate with the Interim Resolution Professional and arrange to disburse the interim finance amount of Rs. 75 Crore through available interim fund proposer M/s. Eka Life Services or in the absence of them through their own sources over a period of 6 to 9 months as stated in Clause 3 of Terms Sheet and subsequently reiterated in Clause 3A of the MoU to ensure that the project is completed within the time frame agreed in the aforesaid MoU. iii. It is further agreed that a sum of Rs. 20 Crore will be deposited by the Interim Fund Proposer or the Appellant in the RERA approved Escrow account of the Corporate Debtor within 30 days from the order of this Hon ble Appellate Tribunal. iv. Further, the disbursement of interim fund and funds generated from dues of the Allottees (Financial Creditors) during the Corporate Insolvency Resolution shall be paid in a timely manner as agreed under the MoU and will be deposited in the RERA account of the Company (Corporate Debtor) to keep the Company as a going concern. The amount will be utilized only for the purposes of completion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 30 days time to infuse the interim finance amount of Rs.20 Crores. Certain other prayers were made in the Application. One of the directions was also sought for the IRP and the promoters to apply for and procure renewal/ re-validation of necessary approvals required for resuming construction of the Project and IRP to execute the Definitive Agreements alongside suspended management with the Applicant for the proposed interim financing of the Project of the Corporate Debtor. 7. On 18.09.2023, Aditya Birla Finance Limited filed an Additional Affidavit. Learned Senior Counsel for the Aditya Birla Finance Limited submits that Aditya Birla Finance Limited which is the Financial Creditor of the Corporate Debtor is interested in giving a better financial offer to the Corporate Debtor for carrying out the construction. Term Sheet dated 14.09.2023 entered between Eldeco Infrastructure Properties Ltd. and Aditya Birla Finance Limited as well as Term Sheet dated 14.09.2023 entered between Wadhawa Group Holding Pvt. Ltd. and Aditya Birla Finance Limited were also annexed in the Additional Affidavit. Additional Affidavit filed by Aditya Birla Finance Limited was replied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2023 issuing various directions which specifically noticed the agreement of EKA Life to provide interim finance of Rs.75 Crores out of which Rs.20 crores was agreed to be paid within 30 days. It is submitted that the order dated 25.07.2023 was passed after noticing the MoU between the Promoters of Belvedere Welfare Association as well as M/s. EKA Life Limited . Homebuyers have also given consent. Office bearer of Belvedere Welfare Association which included Neerav Bhatnagar, Joint Secretary who was Applicant 1 under Section 7 Application has also signed the MoU. Order dated 25.07.2023 was passed after considering all aspects of the matter and the construction could have been started which could not be started due to IA filed by Aditya Birla Finance Limited being IA No.4103 of 2023. Learned Counsel for the Appellant submitted that Aditya Birla Finance Limited is a Financial Creditor of the Corporate Debtor who had initially not shown any interest in reviving the Corporate Debtor and now two term sheets of Eldeco Infrastructure Properties Ltd. and Wadhawa Group Holding Pvt. Ltd. have been submitted on behalf of Aditya Birla Finance Limited. Aditya Birla Finance L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to carry out the completion of the project which will be beneficial to both homebuyers as well as the Financial Creditor. 16. Noticing the submissions and facts of the case, we have passed a detailed order on 25.07.2023 for carrying out the construction of the project as per MoU. In the order dated 25.07.2023, it was noticed that EKA Life shall deposit Rs.20 Crores within 30 days. However, before expiry of 30 days, an Application was filed by EKA Life being IA No.3875 of 2023 seeking extension of time to deposit which was also noticed by our order dated 28.08.2023. 17. EKA Life having already deposited Rs.20 Crores by Bank Draft dated 14.09.2023, we are of the view that the extension of time prayed in IA No.3875 of 2023 needs to be granted from 25.08.2023 to 14.09.2023 when the Bank Draft of Rs.20 Crores was deposited. 18. Much emphasis has been given by Shri Dhruv Mehta, Learned Senior Counsel on IA No.4103 of 2023 where Aditya Birla Finance Limited has offered to provide a better term sheet and finance the entire project. We have already noticed above that Eldeco Infrastructure Properties Ltd. who is now suggested by Aditya Birla Finance Ltd. to provide i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd from the aforesaid account shall be used towards the repayment of ABFL's Principal amount and the Minimum Guarantee of Eka/ Third Party Lender on a proportionate basis. Provided, however, if ABFL consent is not obtained within 12 months from the date of this Agreement, then the repayment of the IF Facility including the Minimum Guarantee Amount shall commence immediately after the expiry of 12 months from the date of this Agreement in priority to the existing lenders of the Developer. The existing lenders shall be paid only once the IF Facility including the Minimum Guarantee is paid in full to Eka and Third Party Lender. 24. After commencement of the construction in the project, receivables in the project have to be deposited in the RERA designated account i.e. 70% and 30%. Although in the Master Agreement, as noted above, certain clauses have been indicated with regard to payment of dues of Aditya Birla Finance Limited , we are of the view that the promoters, IRP and interim finance provider in consultation with the Aditya Birla Finance Limited need to submit a fresh proposal as to how and in what manner the dues of Aditya Birla Finance Limited shall be cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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