The National Company Law Appellate Tribunal (NCLAT), New Delhi comprising Justice Anant Bijay Singh, Judicial Member) and Ms. Shreesha Merla, Technical Member recently observed, "While dismissing the Application filed by the Appellant, the Adjudicating Authority (AA) had not considered the provisions of Rules 37, 49 and 150 of the NCLT Rules."
This Appeal has been preferred by the Appellant–Yogesh Mehra, Partner of Vaayu Infrastructure LLP (Powers Suspended) being aggrieved and dissatisfied by the orders passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench wherein the Application filed by the Respondent No. 2 herein (Financial Creditor)–‘Vejas Power Projects Ltd.’ under Section 7 of the Insolvency and Bankruptcy Code, 2016 against the ‘Vaayu Infrastructure LLP’ (Corporate Debtor) was allowed and further Application filed by the Corporate Debtor for staying the operation of Insolvency proceeding was rejected.
The IL&FS Financial Services Ltd. (IL&FS) had provided Wind World Wind Farms (MP) Private Limited (for short WWWFPL) with financial assistance for an amount of Rs. 100,00,00,000/- (Facility 1) and Rs. 110,00,00,000/- (Facility 2) vide Facility Agreements dated 27.06.2014 and 24.09.2014 respectively.
The IL&FS had assigned its debt in favour of the Financial Creditor herein pursuant to the Assignment Agreement dated 30.12.2015. The Corporate Debtor is the guarantor of WWWFPL for it had executed irrevocable and unconditional guarantees in respect of the Facilities granted to the WWWFPL.
The Financial Creditor contends that an amount of Rs. 1,26,24,68,685/- is due and payable in respect of Facility 1 and an amount of Rs. 1,42,63,76,004/- is due and payable in respect of Facility 2.
The Loan facilities are secured by hypothecation of various movable properties, the Corporate Guarantee given by the Corporate Debtor vide letters of Guarantee dated 27.06.2014 and 24.09.2014 for the two facilities respectively, the Corporate Guarantee given by the Vish Wind Infrastructure LLP vide letters of Guarantees of Mr. Ajay Mehra and Mr. Yogesh Mehra.
The Financial Creditor issued a recall notice dated 29.01.2018 to the WWWFPL for an outstanding amount of Rs. 254,72,62,584/- as on 28.01.2018 but nothing fructified. The Financial Creditor, thereafter, issued a letter dated 07.02.2018 to the Corporate Debtor for invocation of guarantee issued to the Financial Creditor for the debt of WWWFPL in respect of the default committed in repayment.
After hearing the parties, the Ld. Adjudicating Authority has given finding that the Corporate Debtor has defaulted in repayment of debt and the Financial Creditor has made out its case with ample evidence for his claim, so the debt and default have been admitted in terms of Section 5 (8) of the IBC and Section 3 (12) of the IBC and Mr. Shailen Shah appointed as Interim Resolution Professional to conduct the Corporate Insolvency Resolution Process. Being aggrieved, the Appellant has filed the present Appeal.
After hearing the parties and having gone through the pleadings made on behalf of the parties, the Appellate Authority noted, "we are of the considered view that the Ld. Adjudicating Authority passed the order dated 30.08.2019 and admitted the petition filed by Respondent No. 2 herein (Financial Creditor)- 'Vejas Power Project Ltd.' under Section 7 of the Insolvency and Bankruptcy Code, 2016 against the Appellant herein (Corporate Debtor) - 'Vaayu Infrastructure LLP' and further while dismissing the Application filed by the Appellant herein vide order dated 16.09.2019 in MA 2984/2019 & MA 3061/2019 in C.P. 1951 (IB) (MB)/2019, the Ld. Adjudicating Authority has not considered the provisions of Rules 37, 49 and 150 of the NCLT Rules.
In view of the above, the impugned orders dated 30.08.2019 and 16.09.2019 were set aside and the matter was remitted back to the AA to hear the parties including the Appellant herein and Respondent No. 1 herein about his fee and expenses for the period he had worked as IRP and pass appropriate orders within six weeks from the date of receipt of this judgment.
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