9911796707
TMI Blog2024 (9) TMI 1553X X X X Extracts X X X X X X X X Extracts X X X X ..... L held by IL FS and IFIN. The process in pursuance of the above invitation for expression is proceeding as on date. The ICICI Bank being lead lender of the IECCL has also participating in the process including the meetings of the CoC of the IECCL held from time to time. The submission of the IL FS is that the process of IECCL has gone too far and which is going for last three years be allowed to be completed and voting which has already been commenced and last date of which voting is 30.09.2024. The instance of ICICI Bank is not interdicted. Where the revised bid submitted by Howen International Fund SPC requires consideration is not for this Tribunal to assess and it is for the CoC to take a call. Letter sent by Howen International Fund SPC dated 07.07.2024 has extended its validity of fresh EMD till 31.09.2024. In event, the process of sale of 42.25% shareholding of IECCL is on-going resolution process is completed, the said shall not preclude the lenders including the ICICI Bank to raise objection on extinguishment of its entire debt. Liberty granted to the ICICI Bank to raise its objection on extinguishment of its entire debt for mere payment for 42.25% shareholding of IECCL. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gineering and Construction Company Limited (IECCL) which is a Category II Companies. The resolution framework as approved by this Tribunal contemplates categorisation of sale companies (i.e. IL FS Group entities for which a binding bid is received) into:- (a) a Category I Company (i.e., where the bidder is willing to assume all liabilities of the sale company whether operational or financial); or (b) a Category II Company (i.e., where the financial bid amount offered by the bidder is less than all the liabilities of the sale company), based on the highest financial bid (H1 Bid) value received. 3.2. A public bid process was launched by IL FS on 01.10.2020 by publishing an advertisement in leading newspapers inviting Expression of Interest (EoI) for the investment of IECCL. Due to unsatisfactory response to the public process, IL FS on 13.01.2021 issued an invitation for EoIs i.e. sale of shares held by IL FS and in IECCL for acquisition of 42.25% of issued, subscribed and paid up share capital of IECCL held by IL FS and IFIN. EoIs received in pursuance of advertisement that was not accepted by IL FS. IL FS management approved the conducting a Swiss Challenge Process. A process note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion IA No.5036 of 2023 wrote to the IL FS on 15.04.2024 expressing his concerned. Letter dated 15.04.2024 was written by IL FS to H1 bidder informing that H1 bidder that the reliefs set out in IA No.5036 of 2023 shall not apply to the process being conducted by the IL FS Group in terms of the process note for sale of 42.25% subscribed and paid-up share capital in IECCL. An Affidavit dated 03.05.2024 was filed by the IL FS in IA No.5036 of 2023 stating that IL FS Group having already initiated the process for resolution of IECCL in the year 2021, thus, prayed that direction passed in IA No.5036 of 2023 shall not be applicable/be made applicable to the resolution of IECCL which is currently in its final and crucial stages. After the above Affidavit was filed on 03.05.2024 by the IL FS, IA No.3587 of 2024 has been filed by the ICICI Bank Limited seeking a direction that IECCL be included in the purview of IA No.5036 of 2023 and certain other reliefs. It was further prayed that the voting on the final proposal submitted by Almas consortium be kept in abeyance till IA No.5036 of 2023 is finally decided by this Tribunal. The third application filed by Howen International Fund SPC came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . IECCL has more than three decades of experience in the engineering and construction business with capabilities in providing integrated Engineering, Procurement and Construction (EPC) services. IECCL is primarily executing infrastructure projects across India and has been delivering projects in the sectors of Power, Oil and Gas, Roads, Railways and Metros, Water and Irrigation, and Buildings Structures. Interested parties may refer to www.ilfsindia.com/ad/ for details and eligible entities should submit the EOI latest by 5 PM Indian Standard Time on January 28, 2021. Interested parties that have already submitted EOls subsequent to the Initial Advertisements can continue to participate in the process initiated hereunder relying on the documents submitted by them previously by submitting a confirmation as set out in the EOI uploaded on www.ilfsindia.com/ad/pursuant to this advertisement. IL FS reserves the right to suspend, modify or terminate the Proposed Transaction and the process at any time without providing any reasons or incurring any liability to any party. January 13, 2021 6. Terms of bid for acquiring IECCL were issued by the IL FS in December, 2021. A consortium of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare capital of such Category II Companies upon payment of the bid value/proceeds without the requirement of obtaining any further approvals from the shareholders of such Category II Companies, resulting in the final resolution of the said entities; and b) pass such other order(s) as this Hon'ble Appellate Tribunal may deem fit and proper in the facts and circumstances of the case. 9. As noted above, an Affidavit has been filed by the IL FS on 03.05.2024 in IA No. 5036 of 2023 bringing certain additional facts/developments. Affidavit giving the details of process which took place with regard to IECCL under the heading resolution of IECCL. It is useful to notice a details given by IL FS with regard to resolution of IECCL in paragraphs (x) to (xvi), which reads as follows:- Resolution of IECCL (x) In the aforementioned backdrop, it is stated that whilst the captioned Application has been filed permitting the New Board to resolve Category II Companies by writing down 100% of their share capital as stated hereinabove, the present affidavit is being filed to place on record certain clarification(s) that IL FS deems necessary, including placing on records necessary facts with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of the committee of creditors being in the process of considering the Revised Financial Proposal, IL FS issued a letter dated April 3, 2024 for extension of the validity of the Revised Financial Proposal, which was countersigned by Almas. Thereafter, the validity of the Revised Financial Proposal was extended by Almas, on behalf of Consortium vide letter dated April 8, 2024, till June 30, 2024. (xvi) In view of the fact that, (a) the resolution process for IECCL is now at an advanced stage, with the approval from the Committee of Creditors of IECCL for the Revised Financial Proposal being forthcoming; and (b) the Revised Financial Proposal received from the Consortium was submitted in terms of the Process Note which contemplates IECCL continuing to being a listed company post resolution of IL FS' stake and accordingly does not contemplate write down of 100% share capital of IECCL and any material change in the terms of the Process Note at this stage, subject however to and basis this Hon'ble Appellate Tribunal having granted the relief/direction sought under the captioned Application (I.A 5036 of 2023), will not only vitiate the process run till date under the Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IFIN in the IECCL cannot be treated to be resolution of the debt. The aggregate debt exposure of lenders in IECCL is Rs.13,053.9 Crores. The ICICI Bank had objected to voting on H1 bid in the CoC meeting and for that purpose has filed IA No.31 of 2023 before the NCLT and the IL FS itself prompting on the application filed by the ICICI Bank has filed IA No.5036 of 2023 itself proposing that there should be 100% write down of shares of all Category II Companies. It is submitted that when IL FS itself has made this prayer of 100% write down of the shares in Category II Companies, its prayer to exclude IECCL cannot be entertained. IL FS cannot be allowed to take contradictory stand, on the one hand, praying that 100% write down of shares of Category II Companies be taken and on the other hand, seeks to exclude the IECCL from IA No.5036 of 2023. 12. Shri P. Nagesh, Learned Senior Counsel for the Howen International Fund SPC submits that Howen International Fund SPC has submitted its bid with regard to share of 42.25% and the IECCL being listed company, the offer given by Howen International Fund SPC is on the ground that IECCL is listed company and in event of 100% write down of shares, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to time. We have already noticed the Affidavit of IL FS dated 03.05.2024 where IL FS has given its reasons for not including the IECCL in the prayers made in IA No.5036 of 2023. The submission of the IL FS is that the process of IECCL has gone too far and which is going for last three years be allowed to be completed and voting which has already been commenced and last date of which voting is 30.09.2024. We do not interdict at the instance of ICICI Bank. 16. Coming to the application of Howen International Fund SPC, we are of the view that the offer which has been given by Howen International Fund SPC in pursuance of invitation for Expression of Interest are the issues which have to be considered by the CoC and it is not necessary for this Court to express any opinion on the merits of the offer given by Howen International Fund SPC. The submission, however, advanced by Shri P. Nagesh that voting by the CoC on the bid submitted by Howen International Fund SPC need not be interdicted at the instance of the ICICI Bank needs submission. From the facts brought on the record, it does appear that the ICICI Bank as a lead lender has participated in the negotiation process with the H1 Bidd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are to the following effect:- a. Direct IL FS to include IECCL within the list of entities that fall within the ambit and purview of the IL FS Application, being I.A. No. 5036 of 2023 in CA(AT) No. 346 of 2018; b. Direct that if any relief is granted in the IL FS Application, being I.A. No. 5036 of 2023, IL FS will appropriately modify the resolution process for IECCL, including inviting fresh expressions of interest; c. Direct that in the interim, keep the voting on the financial proposal submitted by the Almas Consortium in abeyance until the present Application and the IL FS Application, being I.A. No. 5036 of 2023, is finally decided by this Hon'ble Court; and d. pass such orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case. 19. In the reply to IA No. 5036 of 2023 which was filed by the ICICI Bank, the ICICI Bank in paragraph 23 has pleaded following:- 23. In the event however, this Hon'ble Tribunal was not inclined to grant the reliefs sought in the present Application, in that case, keeping in mind the legal objections raised by the IECCL Lenders' Consortium before the Ld. NCLT, this Hon'ble Tribunal be pleas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
