The South Indian Bank Ltd vs Anuj Jain, R.P. Of Jaypee Infratech Ltd

Axis Bank Ltd. ...Appellant

Versus

Anuj Jain, Resolution Professional for Jaypee Infratech Ltd. ...Respondent

Present:

For Appellant: Mr. Sudipto Sarkar, Senior Advocate assisted by Ms. Anindita Roy Chowdhury, Mr. Abhishek Singh and Mr. Abhijnan Jha, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates. Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates. Mr. Mahfooz Nazki, Advocate.

WITH

Company Appeal (AT) (Insolvency) No. 244 of 2018

IN THE MATTER OF:

Standard Chartered Bank ...Appellant

Versus

Anuj Jain, Resolution Professional for Jaypee Infratech Ltd. ...Respondent

Present:

For Appellant: Mr. Amit Sibal, Senior Advocate with Mr. Parag Maini and Mr. Abhimanyu Chopra, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates. 2

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

Mr. Anshuman Gupta, Mr. Syed Arsalan Abid and Mr. Prateek Khaitan, Advocates.

WITH

Company Appeal (AT) (Insolvency) No. 245 of 2018

IN THE MATTER OF:

ICICI Bank Ltd. ...Appellant

Versus

Anuj Jain, Resolution Professional for Jaypee Infratech Ltd. ...Respondent

Present:

For Appellant: Mr. Ramji Srinivasan, Senior Advocate assisted by Ms. Misha, Mr. Shantanu Chaturvedi and Ms. Charu, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

WITH

Company Appeal (AT) (Insolvency) No. 249 of 2018

IN THE MATTER OF:

State Bank of India ...Appellant

Versus

Anuj Jain, Resolution Professional for Jaypee Infratech Ltd. & Ors. ...Respondents

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 3

Present:

For Appellant: Mr. Sanjay Kapur, Mr. Bharath Gangadhar and Ms. Megha Karnwal, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

WITH

Company Appeal (AT) (Insolvency) No. 276 of 2018

IN THE MATTER OF:

Jai Prakash Associates Ltd. ...Appellant

Versus

Anuj Jain, Resolution Professional for Jaypee Infratech Ltd. ...Respondent

Present:

For Appellant: Mr. Alok Dhir, Ms. Varsha Banerjee and Mr. Kunal Godhwani, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

WITH

Company Appeal (AT) (Insolvency) No. 301 of 2018

IN THE MATTER OF:

Axis Bank Ltd. ...Appellant

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 4

Versus

Anuj Jain, Resolution Professional of Jaypee Infratech Ltd. ...Respondent

Present:

For Appellant: Mr. Krishnendu Datta, Ms. Anindita Roy Chowdhary, Mr. Abhishek Singh and Mr. Abhijnan Jha, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

WITH

Company Appeal (AT) (Insolvency) No. 331 of 2018

IN THE MATTER OF:

Bank of Maharashtra ...Appellant

Vs

Anuj Jain, Resolution Professional ....Respondent for Jaypee Infratech Ltd.

Present:

For Appellant: Mr. Divyanshu Goyal and Ms. Swati Jain, Advocates.

For Respondent: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates. Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates for R.P.

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 5

With

Company Appeal (AT) (Insolvency) No. 343 of 2018

IN THE MATTER OF:

United Bank of India ...Appellant

Versus

Anuj Jain, Resolution Professional of Jaypee Infratech Ltd. & Ors. ...Respondents

Present:

For Appellant: Mr. Rajiv S. Roy, Mr. Avrojyoti Chaterjee, Mr. Abhijit S. Roy and Ms. Jayasree Saha, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

Mr. Jaskinder Singh and Ms. Shipra Shukla, Advocates.

WITH

Company Appeal (AT) (Insolvency) No. 348 of 2018

IN THE MATTER OF:

Central Bank of India ...Appellant

Vs

Anuj Jain, Resolution Professional ....Respondent for Jaype Infratech Ltd.

Present:

For Appellant: Mr. Jasvinder Singh and Ms. Shipra Shukla, Advocates.

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 6

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

With

Company Appeal (AT) (Insolvency) No. 349 of 2018

IN THE MATTER OF:

Standard Chartered Bank ...Appellant

Versus

Anuj Jain, Resolution Professional of Jaypee Infratech Ltd. ...Respondent

Present:

For Appellant : Mr. Parag Maini and Mr. Abhimanyu Chopra, Advocates

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

WITH

Company Appeal (AT) (Insolvency) No. 353 of 2018

IN THE MATTER OF:

ICICI Bank Ltd. ...Appellant

Versus

Anuj Jain, R.P. of Jaypee Infratech Ltd. ...Respondent

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 7

Present:

For Appellant: Mr. Ramji Srinivasan, Senior Advocate assisted by Ms. Misha, Mr. Shantanu Chaturvedi and Ms. Charu Bansal, Advocates

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

WITH

Company Appeal (AT) (Insolvency) No. 370 of 2018

IN THE MATTER OF:

UCO Bank ...Appellant

Vs

Anuj Jain, Resolution Professional for Jaype Infratech Ltd. & Ors. ....Respondents

Present:

For Appellant: Mr. Rajiv S. Roy, Mr. Avrojyoti Chaterjee, Mr. Abhijit S. Roy and Ms. Jayasree Saha, Advocates

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

Mr. Divyanshu Goyal and Ms. Swati Jain, Advocates for Respondent No. 23

Mr. Jasvinder Singh and Ms. Shipra Shukla, Advocates for Respondent No. 26.

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 8

WITH

Company Appeal (AT) (Insolvency) No. 374 of 2018

IN THE MATTER OF:

The Karur Vyasa Bank (P) Ltd. ...Appellant

Vs

Anuj Jain, Resolution Professional ....Respondent for Jaype Infratech Ltd.

Present:

For Appellant : Mr. Vijay Kumar and Mr. Shashant Prabhakar, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

WITH

Company Appeal (AT) (Insolvency) No. 376 of 2018

IN THE MATTER OF:

L&T Infrastructure Finance Company Ltd. ...Appellant

Vs

Anuj Jain, Resolution Professional ....Respondent for Jaype Infratech Ltd.

Present:

For Appellant: Mr. Ramji Srinivasan, Senior Advocate with Mr. Varun Singh, Advocate.

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 9

For Respondent: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

WITH

Company Appeal (AT) (Insolvency) No. 411 of 2018

IN THE MATTER OF:

Central Bank of India ...Appellant

Vs

Anuj Jain, Resolution Professional for Jaypee Infratech Ltd. ....Respondent

Present:

For Appellant: Mr. Jasvinder Singh and Ms. Shipra Shukla, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

WITH

Company Appeal (AT) (Insolvency) No. 424 of 2018

IN THE MATTER OF:

Canara Bank ...Appellant

Vs

Anuj Jain, Resolution Professional ....Respondents for Jaypee Infratech Ltd. & Ors.

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 10

Present:

For Appellant: Mr. Rajiv S. Roy, Mr. Avrojyoti Chaterjee, Mr. Abhijit S. Roy and Ms. Jayshree Saha, Advocates

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates. Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

Mr. Jasvinder Singh and Ms. Shipra Shukla, Advocates for Respondent No. 26

WITH

Company Appeal (AT) (Insolvency) No. 436 of 2018

IN THE MATTER OF:

Karnataka Bank Ltd. ...Appellant

Vs

Anuj Jain, Resolution Professional ....Respondent for Jaypee Infratech Ltd.

Present:

For Appellant : Mr. Siddhant Surya and Mr. Sanjay Bajaj, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 11

WITH

Company Appeal (AT) (Insolvency) No. 458 of 2018

IN THE MATTER OF:

IFCI Ltd. ...Appellant

Vs

Anuj Jain, Resolution Professional ....Respondent for Jaypee Infratech Ltd.

Present:

For Appellant: Ms. Shweta Bharti, Mr. Sukrit Kapoor and Ms. Shuchi Sejwar, Advocates

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

WITH

Company Appeal (AT) (Insolvency) No. 492 of 2018

IN THE MATTER OF:

Allahabad Bank ...Appellant

Vs

Anuj Jain, Resolution Professional for Jaypee Infratech Ltd. & Ors. ....Respondents

Present:

For Appellant: Mr. Rajiv S. Roy, Mr. Avrojyoti Chatterjee, Mr. Abhijit S. Roy and Ms. Jayasree Saha, Advocates.

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 12

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

Mr. Jasvinder Singh and Ms. Shipra Shukla, Advocates for Respondent No. 26

WITH

Company Appeal (AT) (Insolvency) No. 511 of 2018

IN THE MATTER OF:

Jammu & Kashmir Bank ...Appellant

Vs

Anuj Jain, Resolution Professional for Jaypee Infratech Ltd. & Ors. ...Respondent

Present:

For Appellant: Mr. Syed A. Abid, Mr. A. Gupta and Mr. Prateek Khaitan, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

Mr. Jasvinder Singh and Ms. Shipra Shukla, Advocates for Respondent No. 26.

WITH

Company Appeal (AT) (Insolvency) No. 524 of 2018

IN THE MATTER OF:

The South Indian Bank Ltd. ...Appellant

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 13

Vs

Anuj Jain, Resolution Professional ....Respondent for Jaypee Infratech Ltd.

Present:

For Appellant: Mr. Abhimanyu Chopra and Mr. Parag Maini, Advocates.

For Respondents: Mr. Sanjeev Sen, Senior Advocate with Ms. Jannahvi Bhasin, Advocates.

Mr. Sanjay Bhatt and Ms. Niharika Sharma, Advocates (for R.P.)

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

The 'Resolution Professional' of 'Jaypee Infratech Limited'- ('Corporate

Debtor') filed application (CA No. 26 of 2018) under Section 43, 45, 60(5)(a)

& 66 read with Section 25(2)(J) of the Insolvency and Bankruptcy Code,

2016 ("I&B Code" for short) before the Adjudicating Authority ('National

Company Law Tribunal), Allahabad Bench, Allahabad seeking direction that

the transactions entered into by the promoters and Directors of the

'Corporate Debtor' creating mortgage of 858 acres of immovable property

owned by it and in possession of the 'Corporate Debtor', to secure debt of

related party i.e. 'Jaiprakash Associates Limited' by way of mortgage deeds

dated 29th December, 2016, 12th May, 2014, 7th March, 2017, 24th May,

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 14

2016 and 4th March, 2016 are fraudulent and wrongful transactions within

the meaning of Section 66 of the 'I&B Code'.

2. The direction was also sought against the Directors and promoters of

the 'Corporate Debtor' to make such contributions to the assets of the

'Corporate Debtor' as it may deem fit, including directions under Section 67

of the 'I&B Code'.

3. The impugned order has been challenged by the Appellants-

Banks/Financial Institutions (lenders of 'Jaypee Infratech Limited'/

'Jaiprakash Associates Limited') on the grounds as noticed below:

4. Learned counsel for the Appellant submitted that the Adjudicating

Authority ignored the nature and character of a mortgage. Referring to

Section 58 of the 'Transfer of Property Act, 1882', it is submitted that a

'mortgage' means transfer of an interest in specific immoveable property for

the purpose of securing the payment of money advanced or to be advanced

by way of loan, an existing or future debt, or the performance of an

engagement which may give rise to a pecuniary liability.

5. According to the Appellants, a mortgage debt is covered by the

definition of 'debt' under Section 3(11) of the 'I&B Code' and it being liability

or obligation in respect of a claim which is due from the 'Corporate Debtor'

or a mortgagor and the Appellants have a right to payment.

6. According to learned counsel for the Appellants, a mortgage debt

constitutes a 'financial debt' within the meaning of Section 5(8) of the 'I&B

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 15

Code' and the Adjudicating Authority misconstrued the definition of

'financial debt'. The Adjudicating Authority failed to notice that the

'Corporate Debtor' stood in the position of a 'guarantor' with respect to the

security provided by it and also failed to notice the meaning of 'financial

debt' particularly clauses (a) to (i) of Section 5(8) of the 'I&B Code', which

provides extended meaning to 'financial debt'.

7. Therefore, according to them, the transactions in question cannot be

termed to be 'preferential transactions' within the meaning of Section 43 of

the 'I&B Code'.

8. Further, according to them, the transactions, in question, nor come

within the meaning of 'undervalued transactions' for taking action under

Section 45, nor can be termed to be a 'fraudulent trading or wrongful

trading' within the meaning of Section 66 of the 'I&B Code'.

9. To decide the aforesaid issue, it is relevant to notice the individual

case of the Appellants and transactions, as detailed below:

Company Appeal (AT) (Insolvency) No. 243 of 2018

10. Learned counsel for the Appellant- 'Axis Bank Limited' provided the

table of assets mortgaged to it, as under:

S.N. Name of the Bank Date of the Mortgage Assets encumbered under the Mortgage

1. Axis Bank Limited- February 24, 2015 (to cover (a) 167.229 acres of land at Appellant in Comp. App. the NCD exposure of the Village Chagan and Chhalesar,

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 16

(Ins.) AT No.(s) 243, 301 of Corporate Debtor) (pp. 243, Agra, Uttar Pradesh (p. 348 of 2018 314 of the Appeal Paperbook) the Appeal Paperbook); and

This was modified on September (b) 166.9615 acres of land at 15, 2015 (wherein the Security Village Tappal, Kansera, and would cover the Rupee Term Jeenagarh, Aligarh, Uttar Loan exposure, in addition to the Pradesh (p. 275 of the Appeal NCD Exposure). Paperbook).

This was further modified on December 29, 2016, as the The nature and identity of the number of lenders (in terms of assets encumbered have the Rupee Term Loan Exposure) remained the same from increased substantially. (pp. February 24, 2015, till date. 365, 455 of the Appeal (pp. 247, 318 of the Appeal Paperbook) Paperbook read with pp. 377-

378, 457-458 of the Appeal However, the nature and Paperbook).

identity of the Security remained the same.

(pp. 247, 318 of the Appeal Paperbook read with pp. 377- 378, 457-458 of the Appeal Paperbook)

Company Appeal (AT) (Insolvency) No. 244 of 2018 (Standard Chartered Bank)

11. Similar details have been given by the counsel for the Appellant-

'Standard Chartered Bank', as under:

S. NAME OF THE DATE DETAILS OF COMMENCEMENT DATE OF NO. BANK ASSETS OF CIRP FILING OF OF MORTGAGE FORMING PART APPLICATION OF THE UNDER MORTGAGE SECTION 43, 45 AND 66 OF THE CODE

1. Standard Chartered Bank 27.11.2012 An Area By order dated 06th February Facility 1 admeasuring 09.08.2017 passed 2018 25.0040 acres of by the Adjudicating

2. Standard parcel of land Authority at Chartered Bank situated at Allahabad revised 29.12.2012 Village: to 09.08.2018 by Facility 2 Sultanpur, way of Writ Petition Sector-128, (Civil) No. 744 of

3. Standard Noida. 2017 in the matter Chartered Bank of Chitra Sharma 23.03.2013 and Ors. Versus Facility 3 Union of India and

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4. Standard Ors.

Chartered Bank 23.06.2015 Facility 4

5. Standard Chartered Bank 24.05.2016 Facility 5

Company Appeal (AT) (Insolvency) No. 245 of 2018 (ICICI Bank Limited)

12. Learned counsel for the Appellant- 'ICICI Bank Limited' provided a

detailed chart relating to mortgaged properties, as follows:

PROPERTY BANK'S DATE OF FACILITIES DATE OF DATE OF FACILITIES NAME FIRST SECURED BY RECONVEYAN SECOND SECURED MORTGAG FIRST CE/RELEASE MORTGAGE BY SECOND E DEED MORTGAGE AND DEED MORTGAGE RATIONALE

CONSORTIUM MORTGAGES

167.229 26 Lenders 15 Term loans On 29 29 December Term loans acres land of September aggregating to December 2016 aggregating at Agra, Jaiprakash 2015 Rs. 20,509 2016, a release to 21081.50 Uttar Associates Crores deed was crore Pradesh Limited (comprising of executed in (comprising ("JAL") ICICI facilities relation to of ICICI including aggregating to momentary facilities ICICI Bank Rs. 5600 crores) release of aggregating and non- mortgage to Rs. 5600 convertible created vide crores) and debentures for deed dated 15 redeemable maximum of Rs. September non-

3600 Crore 2015, convertible sanctioned by a Simultaneousl debentures consortium of the y, a Mortgage of Rs. lenders of JAL Deed dated 2409.25 ("Original December 29, crores (as Lenders") 2016 creating reduced from mortgage over Rs. 3600 the same Crore) with properties was addition of executed in certain favour of JAL lenders other Lenders than Original (Including Lenders.

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 18

ICICI Bank).

Note: As is evident, Rationale: ICICI Bank's the aggregate aforesaid exposure of momentary 5600 crores release and has recreation of remained mortgage unchanged have been since 2015. done only to record entry of certain additional members into the consortium (as mentioned in 'Facilities Secured by Second Mortgage' column). It may be noted that ICICI exposure has remained unchanged since 2015.

166.9615 26 JAL 15 Term loans On 29 29 December Term loans acres land Lenders September aggregating to December 2016 aggregating at Tappal, including 2015 Rs. 20,509 2016, a release to 21081.50 Aligarh, ICICI Bank Crores deed was crores Uttar (comprising of executed in (comprising Pradesh ICICI facilities relation to of ICICI aggregating to momentary facilities Rs. 5600 crores) release of aggregating and non- mortgage to Rs. 5600 convertible created vide crores) and debentures for deed dated 15 redeemable maximum of Rs. September non- 3600 Crore 2015. convertible sanctioned by a Simultaneousl debentures consortium of the y, a Mortgage of Rs. lenders of JAL Deed dated 2409.25 ("Original December 29, crores (as Lenders") 2016 creating reduced from mortgage over Rs. 3600 the same Crore) with properties was addition of executed in certain favour of the lenders other JAL Lenders than Original (including Lenders. ICICI Bank).

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Rationale: Note: As The is evident, aforesaid ICICI Bank's momentary aggregate release and exposure of recreation of 5600 crores mortgage has have been remained done only to unchanged record entry since 2015.

of certain additional members into the consortium (as mentioned in 'Facilities Secured by Second Mortgage' column). It may be noted that ICICI exposure has remained unchanged since 2015.

151.0063 ICICI Bank 12 May Rupee Term Loan On 7 March 7 March 2017 Rupee Term acre at 2014 of Rs. 15 Billion 2017, a release Loan of Rs. Tappal, under Corporate deed was 12 billion Aligarh, Rupee Loan executed for (under the Uttar Background Facility the release of Note: CAP) under Pradesh : Agreement and property in the General relation to the Though the Corporate Conditions dated 15 billion mortgage deed Rupee Loan 7 May 2014 and facility (of was executed Facility On 12 May overdraft facility 2014) as the in 2017, the Agreement 2014, a of Rs. 1.75 same got earmarking of dated 25 mortgage billion. repaid in 2017. this mortgage May 2015. deed was for the 12 executed by billion facility JIL qua this under the property for (REPAID IN 2017) However, Corporate a 15 billion simultaneous Rupee Loan facility execution of Facility granted by mortgage deed Agreement ICICI Bank dated 7 March dated 25 May to JAL in 2017 in 2015 has been 2014. On relation to the done by JIL 25 May same since 2015 as 2015, properties was is evident from another done for the fact that facility creation of the same has worth Rs. mortgage in been recorded 12 billion favour of ICICI in the JIL's was Bank for the Annual

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provided by 12 billion Reports for the ICICI Bank facility under Financial Year to JAL with the Corporate 2015-16 at a Rupee Loan Note 29 at stipulation Facility page 1691 of on JIL to Agreement Volume VII create dated 25 May and the year mortgage 2015 which 2016-17 at on the same was pending note 34 at land, but since 2015. page 2085 of security Volume IX of creation by the Appeal.

JIL remained pending since 2015.

However, JIL had admitted its liability in relation to creation of mortgage vis-à-vis the 12 billion facility through additional documents, such as Annual Reports for the Financial Year 2015- 16 at Note 29 at Page 1691 of Volume VII and the year 2016-17 at Note 34 at page 2085 of Volume IX of the Appeal.

While in 2017, the 15 billion facility was repaid, the obligation on JIL to create security for the 12 billion facility (of 2015) still

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 21

continued.

Thus from the above, it is clear that, w.r.t. the 12 billion facility, the property was always agreed to be mortgaged as far back as 2015. Formally, the said mortgage was eventually done by JIL on 7 March 2017.

158.1739 ICICI Bank 12 May Rupee Term Loan On 7 March 7 March 2017 Rupee Term acre at 2016 of Rs. 15 Billion 2017, a release Loan of Rs. Jaganpur under Corporate deed was 12 billion and Rupee Loan executed for (under the Aurangpur, Backgroun Facility the release of Note: CAP) under Uttar d: Agreement and property in the Pradesh General relation to the Though the Corporate Conditions dated 15 billion mortgage deed Rupee Loan 7 May 2014 and facility (of was executed Facility On 12 May overdraft facility 2014) as the in 2017, the Agreement 2014, a of Rs. 1.75 same got earmarking of dated 25 mortgage billion. repaid in 2017. this mortgage May 2015. deed was for the 12 executed billion facility by NIL qua under the this (REPAID IN 2017) However, Corporate property simultaneous rupee Loan for a 15 execution of Facility billion mortgage deed Agreement facility dated 7 March dated 25 May granted by 2017 in 2015 has been ICICI Bank relation to the done by JIL to JAL in same since 2015 as 2014. On properties was is evident from 25 May done for the fact that 2015, creation of the same has another mortgage in been recorded facility favour of ICICI in the JIL's worth Rs. Bank for the Annual 12 billion 12 billion Reports for the was facility under Financial year provided by the Corporate 2015-16 at ICICI Bank rupee Loan Note 29 at to JAL with Facility page 1691 of

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a Agreement Volume VII stipulation dated 25 May and the year on JIL to 2015 which 2016-17 at create was pending Note 34 at mortgage since 2015. page 2085 of on the Volume IX of same land, the Appeal.

but security creation by JIL remained pending since 2015.

However, JIL had admitted its liability in relation to creation of mortgage vis-à-vis the 12 billion facility through additional documents, such as Annual Reports for the Financial year 2015- 16 at Note 29 at page 1691 of Volume VII and the year 2016- 17 at Note 34 at Page 2085 of Volume IX of the Appeal.

While in 2017, the 15 billion facility was repaid, the obligation n JIL to create security for the 12 billion facility (of

Company Appeal (AT) (Insolvency) No. 243, 244, 245, 249, 276, 301, 331, 343, 348, 349, 353, 370, 374, 376, 411, 424, 436, 458, 492, 511, 524 of 2018 23

2015) still continued.

Thus from the above, it is clear that, w.r.t.

the 12 billion facility, the property was always agreed to be mortgaged as far back as 2015.

Formally, the said mortgage was eventually done by JIL on 7 March 2017.

Company Appeal (AT) (Insolvency) No. 249 of 2018 (State Bank of India)

13. Learned counsel for the Appellant- 'State Bank of India' provided a

chart relating to mortgaged properties, as follows:

Name of the Date of Mortgage Details of assets forming part of Bank the mortgage

Initially on 24.02.2015 Immovable property comprising 167.229 acres land at Agra, Uttar Pradesh @140-180

Reconfirmed on 15.09.2015

Immovable property comprising 166.9615 acres land at Tappal, On 29.12.2016 with the entry District Aligarh, Uttar Pradesh @ of additional lenders into

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State Bank of consortium of JAL lenders, 181-222 India charge over these 2 properties was remortgaged to cover other lenders as well.

04.03.2016 First charge on Immovable Property admeasuring 90 acres at Village Chauga Tehsil Elmadpur, ict Agra, Uttar Pradesh

@223-253 of Vol. II

Company Appeal (AT) (Insolvency) No. 301 of 2018 (Axis Bank Ltd.)

14. The case of the Appellant- 'Axis Bank Ltd.' is that the security, being

167.229 acres of land at Village Chagan and Chhalesar, Agra, Uttar Pradesh

and 166.9615 acres of land at Village Tappal, Kansera and Jeenagarh,

Aligarh, Uttar Pradesh, were mortgaged by the 'Corporate Debtor' to a

consortium of lenders, including the Appellant. This Security was granted by

the 'Corporate Debtor' on 24th February, 2015 vide separate mortgage deeds

to secure financial assistance given by the Appellant to 'Jaiprakash

Associates Limited', which is holding company of the 'Corporate Debtor'.

Company Appeal (AT) (Insolvency) No. 331 of 2018 (Bank of Maharashtra)

15. Learned counsel for the Appellant- 'Bank of Maharashtra' provided a

chart relating to 'Mortgage, Asset Mortgaged', as follows:

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Chart showing Name of the Bank, Date of Mortgage, Asset Mortgaged, Date of admission of Application under Insolvency and Bankruptcy Code, 2016, Date of filing of Application Under Section 43 of Insolvency and Bankruptcy Code, 2016.

Sr. Name of the Date of Indenture of Mortgage Asset Mortgaged Bank No.

1 Bank of  15.09.2015- To secure 167.229 acres land Maharashtra as credit facilities advanced situated at village Chagan a part of to JAL; and Chhalesar Agra; Uttar consortium of Pradesh.

 29.12.2016-superseded Banks.

the aforesaid Indenture of Mortgage dated 15.09.2015; with no change in substantial terms of the Agreement w.r.t. the same purpose/transaction.

2 Bank of  15.09.2015- To Secure 166.9615 acres land Maharashtra as credit facilities advanced situated at Tappal, a part of to JAL; Kansera & Jeenagarh consortium of district Aligarh, Uttar  29.12.2016-superseded Bank. Pradesh. the aforesaid Indenture of Mortgage dated 15.09.2015; with no change in substantial terms of the Agreement w.r.t the same purpose/transaction.

Company Appeal (AT) (Insolvency) No. 343 of 2018 (United Bank of India)

16. The case of the Appellant- 'United Bank of India' is that two different

mortgage deeds each dated 24 th February 2015, were executed by the

'Corporate Debtor' mortgaging its properties (as third party security) (i)

measuring 167.229 acres situated at Village Chaugan and Chhalesar,

Tehsil Etmadpur District Agra, Uttar Pradesh ("Property 1") and (ii)

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measuring 166.9615 acres situated at Village Tappal, Kansera &

Jeenagarh, Tehsil Khair District Aligarh, Uttar Pradesh ("Property 2") to

secure the financial assistance of 'Jaiprakash Associates Limited', for

the first time in favour of 'Axis Bank Limited' and 'State Bank of India'

(both lenders of 'Jaiprakash Associates Limited') on 24 th February 2015.

Later, upon accession of other lenders and enhancement of secured

limits further mortgage was effectuated on 15 th September 2015 and

again on 29 th December, 2016. The mortgages in favour of the Appellant

was created vide registered mortgage deed dated 29 th December, 2016.

Company Appeal (AT) (Insolvency) No. 348 of 2018 (Central Bank of India)

17. Learned counsel for the Appellant- 'Central Bank of India' provided a

chart relating to 'mortgage of properties in question', as under:

Sl. Name of Asset Date of mortgage Date of Date of filing of No. the Bank mortgaged by Corporate initiation of claim/form C Debtor CIRP

Central Immovable Originally created 09.08.2017 18.08.2017 Bank of property vide indenture of India comprising mortgage dated 167.229 acres 15 September land at Agra, 2015 Uttar Pradesh ("Agra Property")

Momentarily lifted and recreated on 29 December 2016

Central Immovable Originally created 09.08.2017 18.08.2017 Bank of property vide indenture of comprising mortgage dated

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India 166.9615 acres 15 September land at Tappal, 2015 District Aligarh, Uttar Pradesh ("Aligarh Property") Momentarily lifted and recreated on 29 December 2016

Company Appeal (AT) (Insolvency) No. 349 of 2018 (Standard Chartered Bank)

18. According to the Appellant- 'Standard Chartered Bank', on 27th

September, 2012, the Appellant entered into an agreement vide which the

credit facilities aggregating Rs. 400 crores ("Facility 1") had been granted in

favour of 'Jaiprakash Associates Limited' vide the Term Loan Facility

Agreement ("Facility 1 Agreement"). In order to secure the amount granted

under the Facility 1 Agreement, on 27th November, 2012, the security by

way of first pari passu charge over the Subject Property was in favour of the

Applicant by the 'Corporate Debtor' vide the mortgage deed ("Mortgage Deed 1")

executed by the 'Corporate Debtor' in favour of 'IDBI Trusteeship Services

Limited' ("Security Trustee") acting for and on behalf of the Appellant.

19. Further case of the Appellant is that pursuant to the execution of

Facility 1 Agreement and the Mortgage 1, additional credit facilities

aggregating Rs. 450 crores ("Facility 2") were sanctioned by the Appellant in

favour of 'Jaiprakash Associates Limited' on 29th December, 2012. Accordingly,

for the purpose of availing the amount covered in Facility 2, a Term Loan

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Facility Agreement ("Facility Agreement 2") was executed by and between

'Jaiprakash Associates Limited' and the Appellant.

20. Thereafter, on 23rd March, 2013, pursuant to the execution of the

Facility Agreement 2, charge created on the Subject Property was extended

to secure Facility 2. Accordingly, a first pari passu charge by way of a

registered mortgage was created in favour of the Security Trustee acting for

and on behalf of the Applicant by way of a mortgage deed ("Mortgage Deed

2").

21. The Appellant submits that Facility 3 of INR 538,16,00,000/- and

Facility 4 of INR.81,84,00,000/- (total aggregating INR

620,00,00,000/-) were granted by the Appellant to 'Jaiprakash Associates

Limited' vide term loan facility agreements, both of the date (Facility

Agreement 3 & Facility Agreement 4) on 1st May, 2015.

22. The case of the Appellant is that on 23rd June, 2015, Facility 3 and

Facility 4 were sanctioned to 'Jaiprakash Associates Limited' pursuant to the

corrective action plan of the joint lenders' forum of 'Jaiprakash Associates

Limited' constituted under the guidelines framed by 'Reserve Bank of India'

("RBI") which mandated all lenders of 'Jaiprakash Associates Limited' to

sanction new term loans as per their respective share for the purpose of

meeting the liquidity gap required to meet immediate cash flow requirements

of 'Jaiprakash Associates Limited'. Accordingly, one of the

conditions for the sanction of Facility 3 & 4 was that the mortgage created

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over the Subject Property for Facility 1 and Facility 2 shall also extend to

secure Facility 3 & 4. Therefore, in order to achieve the said purpose, the

'Corporate Debtor' executed 'Security Trustee Agreement' in favour of the

Security Trustee (acting for and on behalf of the Appellant).

23. On 4th November, 2015, equitable mortgage was created vide the

Declaration ("Declaration") executed by the authorised representative of the

'Corporate Debtor' evidencing deposit of title deeds inter alia pertaining to

Subject Property in favour of Security Trustee (acting for and on behalf of

the Appellant) to secure Facility 1, Facility 2, Facility 3 and Facility 4 inter-

se on pari passu charge basis. On 4th November, 2015, Security Trustee

prepared a memorandum of entry recording the deposit of title documents in

relation to the Subject Property.

24. On 24th May, 2016, the Appellant received a request from 'Jaiprakash

Associates Limited' by way of its email dated 12th December, 2015 stating

that the title deeds deposited with the Security Trustee for creating equitable

mortgage contains certain properties which were not intended to have been

mortgaged for the benefit of the Appellant and some of such title deeds were

required by the 'Corporate Debtor', and therefore 'Jaiprakash Associates

Limited' requested for release of title deeds deposited with the Security

Trustee and simultaneously 'Corporate Debtor' agreed to create charge by

way of registered mortgage over the Subject Property to secure the facility of

Rs. 297 crore (sanctioned in the year 2013) ("Facility 5") in addition to

Facility 1 to Facility 4. For the said purpose, the 'Corporate Debtor' created

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charge by way of registered mortgage over the Subject Property vide

execution of the Deed of Mortgage ("Last Deed of Mortgage") dated 24th May

2016 in favour of the Security Trustee, thereby creating first pari passu

charge on the Subject Land to secure Facility 1 to Facility 5 (hereinafter

referred to as "Entire Facilities") aggregating INR 1767 Crores sanctioned

by the Appellant.

25. On 17th June, 2016, pursuant to the execution of the Last Deed

of Mortgage, charge over the Subject Property was /registered by filing form

CHG- 1 and certificate of registration of charge (bearing charge identification

no. 10600969) was issued in this respect.

Company Appeal (AT) (Insolvency) No. 353 of 2018 (ICICI Bank Ltd.)

26. The case of 'ICICI Bank Ltd.' in this appeal is that on 28th December,

2009, the Appellant sanctioned Rupee Term Loan of Rs. 8.0 billion ("RTL-

1") and Rupee Term Loan of Rs. 4.0 billion ("RTL-2") under two separate

Common Facility Agreement to 'Jaiprakash Associates Limited', the holding

company of 'Jaypee Infratech Limited', the Corporate Debtor herein. On 31st

March, 2011, Facility Agreement executed between the Appellant and

'Jaiprakash Associates Limited' whereby the Appellant sanctioned a Rupee

Term Loan of Rs. 5.0 billion ("RTL-3") to 'Jaiprakash Associates Limited'.

27. The Facility Agreement executed between the Appellant and

'Jaiprakash Associates Limited' whereby the Appellant sanctioned a Rupee

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Term Loan of Rs. 12.0 billion ("RTL-4") to 'Jaiprakash Associates Limited'

on 30th September, 2011.

28. On 13th December, 2013, the Corporate Rupee Loan Facility

Agreement and General Conditions executed between the Appellant

and 'Jaiprakash Associates Limited' whereby the Appellant granted

Rupee Term Loan of Rs. 15.0 billion ("RTL-5") to 'Jaiprakash

Associates Limited'.

29. On 10th March, 2014, the 'Corporate Debtor' executed a deed of

mortgage for mortgaging its property admeasuring 100 acres at Tappal,

District Aligarh, Uttar Pradesh for securing RTL-5.

30. Pursuant to the Corporate Rupee Loan Facility Agreement and General

Conditions, the Appellant, on 7th May, 2014, sanctioned a Rupee Term Loan of

Rs. 15 Billion ("RTL-6") and overdraft facility of Rs. 1.75 Billion to 'Jaiprakash

Associates Limited'. The Corporate Rupee Loan Facility Agreement executed

between the Appellant and 'Jaiprakash Associates Limited' whereby the

Appellant further advanced a Rupee term loan of Rs. 12.0 billion ("RTL-7")

to 'Jaiprakash Associates Limited' on 25th May, 2015.

31. On 29th December, 2016, the 'Corporate Debtor' created first pari

passu charge on its property admeasuring 167.229 acres land at Agra,

Uttar/Pradesh in favour of 'Axis Trustee Services Limited' (security trustee),

acting for and on behalf of a consortium of lenders of 'Jaiprakash Associates

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Limited', including the Appellant. RTL-1, RTL-2, RTL-3 and RTL-4 of the

Appellant were secured by creation of charge on the said property.

32. The Corporate Debtor created first pari passu charge on its property

admeasuring 166.96 acres land at Tappal, district Aligarh, Uttar Pradesh in

favour of 'Axis Trustee Services Limited' (security trustee), acting for and on

behalf of a consortium of lenders of 'Jaiprakash Associates Limited',

including the Appellant. RTL-1, RTL-2, RTL-3 and RTL-4 of the Appellant

were secured by creation of charge on the said property.

33. The 'Corporate Debtor', on 7th March, 2017 created first exclusive

charge over immovable property comprising 151.0063acre land at Tappal,

district Aligarh, Uttar Pradesh to secure RTL-7. The 'Corporate Debtor'

created first exclusive charge over immovable property comprising 158.17

acres land at Jaganpur and Aurangpur, Uttar Pradesh to secure RTL-7.

34. On 28th June, 2017, the demand notice issued by the Appellant to

'Jaiprakash Associates Limited' requesting to repay the outstanding

amounts under the 'Jaiprakash Associates Limited' Facilities.

Company Appeal (AT) (Insolvency) No. 370 of 2018 (UCO Bank)

35. According to the Appellant- 'UCO Bank', two different mortgage

deeds each dated 24 th February 2015, were executed by the 'Corporate

Debtor' mortgaging its properties (as third party security) (i) measuring

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167.229 acres situated at Village Chaugan and Chhalesar, Agra, Uttar

Pradesh ("Property 1") and (ii) measuring 166.9615 acres situated at

Village Tappal, Kansera & Jeenagarh, Aligarh, Uttar Pradesh ("Property

2") to secure the financial assistance of 'Jaiprakash Associates Limited',

for the first time in favour of 'Axis Bank Limited' and 'State Bank of

India' (both lenders of 'Jaiprakash Associates Limited') on 24 th February

2015. Later, upon accession of other lenders and enhancement of

secured limits further mortgage was effectuated on 15 th September, 2015

and again on 29 th December 2016. The mortgages in favour of the

Appellant was created vide registered mortgage deeds dated 15 th

September, 2015 and 29 th December, 2016.

Company Appeal (AT) (Insolvency) No. 374 of 2018 (The Karur Vysya Bank (P) Ltd.)

36. The case of the Appellant is that 'Karur Vysya Bank Ltd.' [Scheduled

Bank is a member of consortium of lenders to the 'Jaiprakash Associates

Ltd.' as the Appellant Bank granted the following credit facilities to

'Jaiprakash Associates Ltd.':

(i) (GOOTERM120490001) Rupee Term loan of Rs.75.00 Crores

(ii) (GOOTERM150890002) Rupee Term loan of Rs.50.00 Crores

On the execution of following loan documents;

a) Master Security Trustee Agreement ("MSTA") dated 24th September,

2011;

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b) Master Inter Creditor Agreement ("MICA") dated 24th September,

2011;

c) Deed of Accession dated 24th February, 2012 to "MSTA" in relation

to 'Jaiprakash Associates Ltd.' Facilities;

d) Deed of Adherence issued on 24th February 2012 to "MICA" in

relation to 'Jaiprakash Associates Ltd.' Facilities; as also the other

Consortium bankers have granted various credit facilities to.

37. The Corporate Debtor, 'M/s Jaypee Infratech Limited' has

mortgaged its following immovable properties, to secure the Term loan

facilities granted to 'Jaiprakash Associates Ltd.' by the Appellant Bank.

a. First pari passu charge over immovable property comprising

167.229 acres land at Agra, Uttar Pradesh ("Property 1") created

by registered mortgage dated 15 th September 2015 executed by the

'Corporate Debtor' in favour of 'Axis Trustee Services Limited'

("ATSL"), acting as security trustee for the benefit of the Appellant

and other lenders of 'Jaiprakash Associates Ltd.'; and

b. First pari passu charge over immovable property comprising

166.9615 acres land at Tappal, district Aligarh, Uttar Pradesh

("Property 2") created by registered mortgage dated 15 th September

2015 ("IOM 2") in favour of 'ATSL', acting as security trustee for the

benefit of the Appellant and other lenders of 'Jaiprakash Associates

Ltd.'.

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38. The said mortgages were created to secure credit facilities

comprising of term loans aggregating to Rs.20,509 Crore granted by the

'Jaiprakash Associates Ltd.' consortium lenders to 'Jaiprakash Associates

Ltd.' and redeemable convertible debentures issued for an amount of

Rs.3600 Crore to various debenture holders by 'Jaiprakash Associates Ltd.'.

39. Subsequently, to accommodate additional lenders into the consortium

of 'Jaiprakash Associates Ltd.' lenders, the charges over above mortgaged

properties were extended to secure credit facilities of the existing lenders

and additional lenders to the extent of term loans aggregating to 21081.50

crore and redeemable convertible debentures issued for an amount of Rs.

2409.25 crores (reduced from Rs. 3600 Crore) and for the aforesaid

extension of charge, the charge was momentarily and temporarily released

with the limited purpose of charge extension for the above referred

additional lenders and hence immediately re-mortgaged vide Indenture of

mortgages both dated 29th December, 2016.

Company Appeal (AT) (Insolvency) No. 376 of 2018 (L&T Infrastructure Finance

Company Limited)

40. The Appellant- 'L&T Infrastructure Finance Company Ltd.' provided a

chart showing details of transaction, as under:

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Name of the Date of Assets mortgaged Date of Amount Financial Mortgage registration of outstanding Creditor Charge with under facilities ROC provided to Jayprakash Associates Ltd.

(JAL)

L & T 15.09.2015 & In view of the financial 6.10.2015 A As on Infrastructure assistance rendered to copy of the 09.08.2017, Rs.

Finance Company 15.09.2015 JAL by various lenders Certificate of 189,91,42,048/-

Limited (The which constitute a Registration of (which Appellant herein) Consortium of Lenders Charge is comprises of the (hereinafter Annexed matured/unmat "Consortium") herewith and ured principal of comprising of the marked as the term loans Appellant the ANNEXURE- facilities, Corporate Debtor, i.e. A/1. interest and JIL, as a third party default interest security provider to thereon at the secure the facilities contractual provided to JAL rates) is created mortgage of outstanding immoveable property under the as stated herein below: facilities provided to JAL a. First pari passu which are charge over immovable secured by the property comprising immoveable 167.229 acres land at properties of Agra, Uttar Pradesh Jaypee Infratech ("Property 1") created Ltd. (JIL) by registered mortgage vide an Indenture of Mortgage dated 15.09.2015 executed at Noida, Uttar Pradesh in favour of Axis Trustee Services Limited ("ATSL"), acting as security trustee for the benefit of the Appellant and other pari passu lenders of JAL; and

b. First pari passu charge over immovable property comprising 166.9615

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Company Appeal (AT) (Insolvency) No. 411 of 2018 (Central Bank of India)

41. The Appellant- 'Central Bank of India' has also provided details of

asset mortgaged and other relevant details, as under:

Sl. No. Name of the bank Asset mortgaged Date of mortgage by Corporate Debtor

1. Central Bank of India Immovable property Originally created vide comprising 167.229 indenture of mortgage acres land at Agra, dated 15th September Uttar Pradesh ("Agra 2015 Property") Momentarily lifted and recreated on 29th December, 2016

2. Central Bank of India Immovable property Originally created vide comprising 166.9615 indenture of mortgage acres land at Tappal, dated 15th September District Aligarh, Uttar 2015 Pradesh ("Aligarh Property") Momentarily lifted and recreated on 29th December, 2016

Company Appeal (AT) (Insolvency) No. 424 of 2018 (Canara Bank)

42. The case of the Appellant- 'Canara Bank' is that two different

mortgage deeds each dated 24 th February 2015, were executed by the

'Corporate Debtor' mortgaging its properties (as third party security) (i)

measuring 167.229 acres situated at Village Chaugan and Chhalesar,

Agra, Uttar Pradesh ("Property 1") and (ii) measuring 166.9615 acres

situated at Village Tappal, Kansera & Jeenagarh, Aligarh, Uttar Pradesh

("Property 2") to secure the financial assistance of 'Jaiprakash

Associates Limited', for the first time in favour of 'Axis Bank Limited' and

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'State Bank of India' (both lenders of 'Jaiprakash Associates Limited') on

24th February 2015. Later, upon accession of other lenders and

enhancement of secured limits further mortgage was effectuated on 15 th

September, 2015 and again on 29 th December 2016. The mortgages in

favour of the Appellant was created vide registered mortgage deeds dated

15th September, 2015 and 29 th December, 2016.

Company Appeal (AT) (Insolvency) No. 458 of 2018 (IFCI Limited)

43. The Appellant- 'IFCI Limited' has provided a chart showing the details

of mortgage deeds etc., as under:

S.No. Particulars Detail

1. NAME OF BANK/ FINANCIAL IFCI Ltd. having its registered INSTITUTUIN office at IFCI Tower, 61, Nehru Place, New Delhi-110019.

2. DATE OF MORTGAGE Mortgage Deed: 29.12.2016

i. Mortgage Deed entered into between Jaypee Infratech Limited (JIL) and Axis Trustee Services Limited (ATSL) with respect to Leasehold Land of 167.229 Acres situated at Villages Chhalesar and Chaugan, AGRA.

ii. Mortgage Deed entered into between Jaypee Infratech Limited (JIL) and Axis Trustee Services Limited (ATSL) with respect to Leasehold Land of 166.9615 Acres situated at Villages Tappal, Kansera and Jahangarh,

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ALIGARH.

3. ASSET(S) MORTGAGED i. Area: 167.229 Acres (Villages Chhalesar and Chaugan, AGRA)

Area: 166.9615 Acres (Villages Tappal, Kansera and Jahangarh, ALIGARH)

4. DATE OF ADMISSION OF 09.08.2017 (Admission of the APPLICATION UNDER I&B CODE. Company petition No. IB/77/ALD/2017 along with C.A. No. 26/2018) initiated by the IRP.

5. DATE OF FILING APPLICATION 06.02.2018 (C.A. No. 26/2018 in UNDER SECTION-43 AND OTHER Company Petition No. PROVISIONS OF LAW IB/77/ALD/2017.

Company Appeal (AT) (Insolvency) No. 492 of 2018 (Allahabad Bank)

44. The case of the Appellant- 'Allahabad Bank' is that two different

mortgage deeds each dated 24 th February 2015, were executed by the

'Corporate Debtor' mortgaging its properties (as third party security) (i)

measuring 167.229 acres situated at Village Chaugan and Chhalesar,

Agra, Uttar Pradesh ("Property 1") and (ii) measuring 166.9615 acres

situated at Village Tappal, Kansera & Jeenagarh, Aligarh, Uttar Pradesh

("Property 2") to secure the financial assistance of 'Jaiprakash

Associates Limited', for the first time in favour of 'Axis Bank Limited' and

'State Bank of India' (both lenders of 'Jaiprakash Associates Limited') on

24th February 2015. Later, upon accession of other lenders and

enhancement of secured limits further mortgage was effectuated on 15 th

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September, 2015 and again on 29 th December 2016. The mortgages in

favour of the Appellant were created vide registered mortgage deeds

dated 15 th September, 2015 and 29th December, 2016.

Company Appeal (AT) (Insolvency) No. 511 of 2018 (Jammu & Kashmir Bank)

45. According to the Appellant- 'Jammu & Kashmir Bank', it alongwith

other lenders of Consortium Bank 1ed by 'ICICI Bank' had

sanctioned/granted credit facility to 'Jaiprakash Associates Ltd.' and as per

the terms and conditions of the Loan to 'Jaiprakash Associates Ltd.',

'Jaypee Infratech Limited' had mortgaged some of its properties as collateral

security in favour of 'Axis Trustee Services Limited' for the benefit of the

Appellant and other members of the Consortium. The Appellant and other

members of the consortium had sanctioned/granted financial assistance

inter-alia in the form of term loans to 'Corporate Debtor', from time to time.

One of the conditions of the Loan Agreement was that the obligations be

secured by the security interest over the secured property to the

satisfaction of the secured parties and hence, a security trustee agreement

was executed in favour of the 'Axis Trustee Services Limited' (acting as the

Security Trustee for the benefit of the Appellant and other members of

consortium of lenders of 'Jaiprakash Associates Ltd.'), in order to secure

the credit facilities sanctioned to 'Jaiprakash Associates Ltd.'.

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46. The mortgaged properties referred above were mortgaged (as third

party security) for the first time in favour of the lender of 'Jaiprakash

Associates Ltd.' ('Axis Bank Limited' and 'State Bank of India') on 24th

February 2015. Later, for the purpose of securing enhanced loan

amount, the mortgage deeds were extended on 15 th September 2015. The

last of such mortgage was extended vide two separate registered

mortgage deeds both dated 29 th December 2016, for land admeasuring

167.229 acres and 166.9615 acres respectively. The loans of the

Appellant were duly secured by the said third party mortgages, from time

to time. The said mortgages deeds were existing since 24 th February 2015

and the same have been merely extended (momentarily released and

immediately re-mortgaged) from time to time to secure additional loans,

including the loans of the Appellant (i.e. an amount of Rs 150 Crores

lent/advanced by the appellant to 'Jaiprakash Associates Ltd.').

Company Appeal (AT) (Insolvency) No. 524 of 2018 (The South Indian Bank Ltd.)

47. The case of the Appellant- 'South Indian Bank Ltd.' is that on 18th

May, 2013, 'Deed of Accession' and 'Deed of Adherence' was executed by the

Appellant for an amount of Rs. 100 Crores (Rupee One Hundred Crores

Only) in favour of the parties to the Master Security Trustee Agreement

dated 24th September 2011 by and among 'Jaiprakash Associates Limited',

and other parties as mentioned therein.

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48. 'Credit Facility Agreement' executed between 'Jaiprakash Associates

Limited' and the Appellant for an amount of Rs. 120 Crores (One Hundred

and Twenty Crores Only) on 24th March, 2015.

49. The 'Corporate Debtor' on 15th September, 2015, vide two different

mortgage deeds of the same date ("IOM 1 and IOM 2"), mortgaged its

properties bearing 167.229 acres at Village Chagan and Chhalesar, Agra,

Uttar Pradesh ("Property 1") and 166.9615 acres at Village Tappal,

Kansera & Jeenagarh, Aligarh, Uttar Pradesh ("Property 2") in favour of a

consortium of lenders to 'Jaiprakash Associates Limited' which includes the

Appellant ("JAL Consortium") of 'Jaiprakash Associates Limited' Lenders to

secure term loans aggregating to Rs. 20509 Crore sanctioned to 'Jaiprakash

Associates Limited' by members of 'Jaiprakash Associates Limited'

Consortium and redeemable non-convertible debentures issued for amounts

not exceeding Rs. 3600 Crore to debenture holders. RTL-1, RTL-2, RTL-3

and RTL-4 sanctioned by the Appellant were inter-alia secured by the

aforesaid mortgages. Thereafter, on 29th December, 2016, IOM 1 and IOM

2 were momentarily released to facilitate entry of new lenders into the

'Jaiprakash Associates Limited' Consortium which includes the Appellant

thereby securing an aggregate amount of Rs. 21081.50 crore and

redeemable convertible debentures issued for an amount of Rs. 2409.25

crores (as reduced from redeemable convertible debentures issued for an

amount of Rs. 3600 Crore).

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50. Learned counsel for the Appellants submitted that none of the

provisions such as Section 42, 44, 45 or 66 of the 'I&B Code' are applicable

to any of the transactions, in question, as referred to above. They relied on

the provisions aforesaid in support of their contentions.

Stand of the 'Resolution Professional'

51. Learned counsel appearing on behalf of the 'Resolution Professional'

submitted that the transaction, in question, come within the meaning of

'preferential transaction', 'undervalued transaction' and 'fraudulent

transaction' made by the 'Corporate Debtor'.

52. It was submitted that Appellants are consortium of Banks and

Financial Institution of 'Jaiprakash Associates Limited', which is the holding

company of the 'Corporate Debtor' namely-- 'Jaiprakash Infratech Limited'.

53. It was submitted that the 'Corporate Debtor' has been facing severe

financial stress and liquidity crunch since 2015 and started facing litigation

from homebuyers (allottees) before different forum. Additionally, it started

defaulting in payments of loans and financial assistance borrowed from

'Financial Creditors'. The 'Jaypee Infratech Limited' ('Corporate Debtor') was

declared non-performing asset (NPA) on 30th September, 2015 by LIC and

other lenders on different dates, as detailed below:

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Name of the Bank Date of the NPA

J& K Bank 31.08.2015

LIC 30.09.2015

Corporation Bank 29.02.2016

Syndicate Bank 31.03.2016

Bank of Maharashtra 31.03.2016

Union Bank 31.03.2016

54. It was also submitted that the 'Corporate Debtor' was in dire needs of

funds during period and was facing severe liquidity crunch to complete the

construction of projects and deliver the flats to home-buyers, as well honour

the payment obligations to 'Financial Creditors' as also the 'fixed deposit'

holders. 'Jaypee Infratech Limited' ('Corporate Debtor') owns various pieces

of unencumbered land which was available to be liquidated or offered as

security to raise finance to complete the constructions of flats and deliver

possession of flats to the homebuyers/ allottees.

55. It is also submitted that in the middle of its immense financial

crunch, the 'Corporate Debtor' while continuing to commit default to

allottees and other 'Financial Creditors', even after being declared as NPA,

the directors of 'Jaypee Infratech Limited' in utter disregard to their

fiduciary duties mortgaged 585 acres of unencumbered land owned by

'Jaypee Infratech Limited' ('Corporate Debtor') to secure the debt of

'Jaiprakash Associates Ltd.' which is the related party.

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56. According to the 'Resolution Professional', the mortgaged 858 acres of

land valued at Rs.5,900 Crores approximately, which the directors of the

'Corporate Debtor', mortgaged to secure the debt of 'Jaiprakash Associates

Ltd.', when the 'Corporate Debtor' itself was in dire need of funds and could

have sold/ mortgaged unencumbered land to raise funds to complete the

construction of flats in timely manner to fulfil its own obligation to its

creditors and prevent value deterioration or erosion or insolvency.

57. Further, the case of the 'Resolution Professional' is that 'Jaiprakash

Associates Ltd.' being the holding company owing 995,000,000 numbers of

shares of 'Jaypee Infratech Limited' as on 31st March 2017, 'Jaiprakash

Associates Ltd.' is a related party within the meaning of Section 2(74) of the

Companies Act, 2013 and the promoter of 'Jaypee Infratech Limited' within

the meaning of Section 2(69) of the Companies Act, 2013.

58. It was further contended that in the 49th meeting dated 28th May 2015

and 50th meeting dated 6th August 2015 of the Board of Directors of 'Jaypee

Infratech Limited' ('Corporate Debtor') taken up the agenda to create

security over the assets of the 'Jaypee Infratech Limited' in favour of

'Standard Chartered Bank' for financial assistance to related company

'Jaiprakash Associates Ltd.' was considered and decided in favour of the

Bank. In the 52nd meeting dated 11th February 2016 of the Board of

Directors of 'Jaypee Infratech Limited', the agenda relates to creations of

security over the assets of the 'Jaypee Infratech Limited' in favour of the

'State Bank of India' for financial assistance to related company 'Jaiprakash

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Associates Ltd.' was considered and decision taken. In the 54th meeting

dated 10th September, 2016 of the Board of Directors of 'Jaypee Infratech

Limited', by its agenda for creation of security over the assets of the 'Jaypee

Infratech Limited' in favour of the 'ICICI Bank Ltd.' for financial assistance

to related company 'Jaiprakash Associates Ltd.' was considered and

resolved.

59. According to him, while the mortgage of land by the company to its

related party may not be forbidden under law, it becomes questionable if it

has been done in complete disregard to the interest of creditors and

stakeholders of such company.

Discussion on provisions of law and facts:

60. Section 43 of the 'I&B Code' relates to 'preferential transactions and

relevant time', as under:

"43. Preferential transactions and relevant

time.─ (1) Where the liquidator or the resolution

professional, as the case may be, is of the opinion

that the corporate debtor has at a relevant time given

a preference in such transactions and in such manner

as laid down in sub-section (2) to any persons as

referred to in sub-section (4), he shall apply to the

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Adjudicating Authority for avoidance of preferential

transactions and for, one or more of the orders

referred to in section 44.

(2) A corporate debtor shall be deemed to have given

a preference, if-

(a) there is a transfer of property or an interest

thereof of the corporate debtor for the benefit

of a creditor or a surety or a guarantor for or

on account of an antecedent financial debt or

operational debt or other liabilities owed by

the corporate debtor; and

(b) the transfer under clause (a) has the effect

of putting such creditor or a surety or a

guarantor in a beneficial position than it

would have been in the event of a distribution

of assets being made in accordance with

section 53.

(3) For the purposes of sub-section (2), a preference

shall not include the following transfers-

(a) transfer made in the ordinary course of the

business or financial affairs of the corporate

debtor or the transferee;

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(b) any transfer creating a security interest in

property acquired by the corporate debtor to

the extent that -

(i) such security interest secures new

value and was given at the time of or

after the signing of a security

agreement that contains a description of

such property as security interest, and

was used by corporate debtor to acquire

such property; and

(ii) such transfer was registered with an

information utility on or before thirty

days after the corporate debtor receives

possession of such property:

Provided that any transfer made in pursuance

of the order of a court shall not, preclude such

transfer to be deemed as giving of preference by the

corporate debtor.

Explanation.─ For the purpose of sub-section

(3) of this section, "new value" means money or its

worth in goods, services, or new credit, or release by

the transferee of property previously transferred to

such transferee in a transaction that is neither void

nor voidable by the liquidator or the resolution

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professional under this Code, including proceeds of

such property, but does not include a financial debt

or operational debt substituted for existing financial

debt or operational debt.

(4) A preference shall be deemed to be given at a

relevant time, if -

(a) It is given to a related party (other than by

reason only of being an employee), during the

period of two years preceding the insolvency

commencement date; or

(b) a preference is given to a person other than

a related party during the period of one year

preceding the insolvency commencement

date."

61. From bare reading of Section 43, it is clear that the 'Liquidator' or the

'Resolution Professional' is to form opinion that the 'Corporate Debtor' at a

relevant time has given a preference in such transactions as laid down in

sub-section (2) (a) to any person as referred to therein.

As per sub-section (2) (a) of Section 43, the 'Corporate Debtor' shall be

deemed to have given a preference, if-- there is a transfer of property or an

interest thereof of the 'Corporate Debtor' for the benefit of a creditor or a

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surety or a guarantor for or on account of an antecedent financial debt or

operational debt or other liabilities owed by the 'Corporate Debtor'.

62. In the present case, the 'Corporate Debtor' has created interest on the

property of the 'Corporate Debtor', but such interest has not been created in

favour of any creditor or a surety or a guarantor for or on account of an

antecedent financial debt or operational debt or other liabilities owed by the

'Corporate Debtor'.

63. The aforesaid interest on the property of the 'Corporate Debtor' has

been created in all these cases with regard to financial debt given by the

Appellants to 'Jaiprakash Associates Ltd.', which is not the 'Corporate

Debtor'.

64. Thus, it is clear that the interest on the property of the 'Corporate

Debtor' has not been created in favour of the Appellants- 'Financial

Creditors' of an antecedent financial debt of the Appellants owed by the

'Jaypee Infratech Ltd.' ('Corporate Debtor'). Therefore, we hold that clause (a)

of sub-section (2) of Section 43 is not attracted in any of the case of the

Appellants Bank, thereby none of the Appellants Bank come within the

meaning of 'deemed to have given a preference', as used in Section 43.

Therefore, the mortgage(s) created in their favour cannot be annulled on the

ground of preferential transaction in terms of Section 43 (2) (a) of the 'I&B

Code'.

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65. Clause (b) of sub-section (2) of Section 43 relates to transfer under

clause (a) of sub-section (2) of Section 43, which in effect puts such creditor

or a surety or a guarantor in a beneficial position than it would have been in

the event of a distribution of assets being made in accordance with Section

53. As clause (a) of sub-section (2) of Section 43 is not attracted, the

question of applicability of clause (b) of sub-section (2) of Section 43 does

not arise.

66. Apart from the aforesaid position of law in respect to mortgage, in

question, as per sub-section (3) of Section 43, for the purposes of sub-

section (2), "a preference shall not include the transfer made in the ordinary

course of the business or financial affairs of the 'Corporate Debtor' or the

transferee". The mortgages in question which were made in favour of the

Appellants- Banks and Financial Institutions have been made in ordinary

course of the business and financial affairs of the transferee, as apparent

from the relevant facts.

67. Therefore, we hold that Section 43 is not attracted to any of the

transaction/ mortgage(s) made in favour of the Appellants.

68. Section 44 of the 'I&B Code' relates to 'orders in case of preferential

transactions', which reads as follows:

"44. Orders in case of preferential

transactions.─ (1) The Adjudicating Authority, may,

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on an application made by the resolution professional

or liquidator under sub-section (1) of section 43, by an

order:

(a) require any property transferred in

connection with the giving of the preference to

be vested in the corporate debtor;

(b) require any property to be so vested if it

represents the application either of the

proceeds of sale of property so transferred or

of money so transferred;

(c) release or discharge (in whole or in part) of

any security interest created by the corporate

debtor;

(d) require any person to pay such sums in

respect of benefits received by him from the

corporate debtor, such sums to the liquidator

or the resolution professional, as the

Adjudicating Authority may direct;

(e) direct any guarantor, whose financial

debts or operational debts owed to any person

were released or discharged (in whole or in

part) by the giving of the preference, to be

under such new or revived financial debts or

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operational debts to that person as the

Adjudicating Authority deems appropriate;

(f) direct for providing security or charge on

any property for the discharge of any financial

debt or operational debt under the order, and

such security or charge to have the same

priority as a security or charge released or

discharged wholly or in part by the giving of

the preference; and

(g) direct for providing the extent to which any

person whose property is so vested in the

corporate debtor, or on whom financial debts

or operational debts are imposed by the order,

are to be proved in the liquidation or the

corporate insolvency resolution process for

financial debts or operational debts which

arose from, or were released or discharged

wholly or in part by the giving of the

preference:

Provided that an order under this section shall not -

(a) affect any interest in property which was

acquired from a person other than the

corporate debtor or any interest derived from

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such interest and was acquired in good faith

and for value;

(b) require a person, who received a benefit

from the preferential transaction in good faith

and for value to pay a sum to the liquidator or

the resolution professional.

Explanation I.─ For the purpose of this section, it is

clarified that where a person, who has acquired an

interest in property from another person other than

the corporate debtor, or who has received a benefit

from the preference or such another person to whom

the corporate debtor gave the preference, ─

(i) had sufficient information of the initiation

or commencement of insolvency resolution

process of the corporate debtor;

(ii) is a related party,

it shall be presumed that the interest was acquired,

or the benefit was received otherwise than in good

faith unless the contrary is shown.

Explanation II.─ A person shall be deemed to have

sufficient information or opportunity to avail such

information if a public announcement regarding the

corporate insolvency resolution process has been

made under section 13."

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69. From bare reading of Section 44, it is clear that it is on the basis of

application made by the 'Resolution Professional' or the 'Liquidator' under

sub-section (1) of Section 43, that the Adjudicating Authority has the power

to pass order in terms of Section 44. In these appeals as we have held that

Section 43 is not attracted to any of the transactions made in favour of the

Appellants, the Adjudicating Authority has no power to pass order under

Section 44 of the 'I&B Code'.

70. Section 45 of the 'I&B Code' deals with 'avoidance of undervalued

transactions', as under:

"45. Avoidance of undervalued transactions.─ (1)

If the liquidator or the resolution professional, as the

case may be, on an examination of the transactions of

the corporate debtor referred to in sub-section (2)

determines that certain transactions were made

during the relevant period under section 46, which

were undervalued, he shall make an application to

the Adjudicating Authority to declare such

transactions as void and reverse the effect of such

transaction in accordance with this Chapter.

(2) A transaction shall be considered undervalued

where the corporate debtor-

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(a) makes a gift to a person; or

(b) enters into a transaction with a person

which involves the transfer of one or more

assets by the corporate debtor for a

consideration the value of which is

significantly less than the value of the

consideration provided by the corporate

debtor,

and such transaction has not taken place in the

ordinary course of business of the corporate debtor."

71. For holding a transaction undervalued, the 'Resolution Professional'/

'Liquidator' is required to examine the transactions which were made during

'the relevant period' as prescribed under Section 46, if any of it is

undervalued. As per sub-section (2) of Section 45, the transaction shall be

considered 'undervalued' 'where the 'Corporate Debtor' makes a gift to a

person or enters into a transaction with a person which involves the transfer

of one or more assets by the 'Corporate Debtor' for a consideration the value

of which is significantly less than the value of the consideration provided by

the 'Corporate Debtor' and such transaction has not taken place in the

ordinary course of business of the 'Corporate Debtor'.'

72. In these appeals, we find that the transactions as has been made i.e.

mortgage(s) in favour of the Appellants as and when made against the

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amount payable by 'Jaiprakash Associates Limited' (borrower), the amount

is not payable by the 'Corporate Debtor'. Therefore, clause (a) of sub-section

(2) of Section 45 is not attracted. For the same very reason, clause (b) of

sub-section (2) of Section 43 or Section 45 cannot be made applicable with

regard to transaction in question which are not related to any payment due

from the 'Corporate Debtor'.

73. As Section 44 is not attracted, it is not necessary to notice Section 46

which is not attracted and, therefore, the Adjudicating Authority has no

power to pass any order under Section 48 of the 'I&B Code'.

74. Section 66 relates to 'fraudulent trading' or 'wrongful trading', if found

during the 'Resolution Process' or 'Liquidation Process' in regard to the

business of the 'Corporate Debtor', which reads as under:

"66. Fraudulent trading or wrongful trading.─(1)

If during the corporate insolvency resolution process

or a liquidation process, it is found that any business

of the corporate debtor has been carried on with

intent to defraud creditors of the corporate debtor or

for any fraudulent purpose, the Adjudicating

Authority may on the application of the resolution

professional pass an order that any persons who

were knowingly parties to the carrying on of the

business in such manner shall be liable to make such

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contributions to the assets of the corporate debtor as

it may deem fit.

(2) On an application made by a resolution

professional during the corporate insolvency

resolution process, the Adjudicating Authority may by

an order direct that a director or partner of the

corporate debtor, as the case may be, shall be liable

to make such contribution to the assets of the

corporate debtor as it may deem fit, if─

(a) before the insolvency commencement date,

such director or partner knew or ought to have

known that the there was no reasonable

prospect of avoiding the commencement of a

corporate insolvency resolution process in

respect of such corporate debtor; and

(b) such director or partner did not exercise

due diligence in minimising the potential loss

to the creditors of the corporate debtor.

Explanation.─ For the purposes of this section a

director or partner of the corporate debtor, as the case

may be, shall be deemed to have exercised due

diligence if such diligence was reasonably expected of

a person carrying out the same functions as are

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carried out by such director or partner, as the case

may be, in relation to the corporate debtor."

75. From bare perusal of Section 66, it is clear that if during the

'Corporate Insolvency Resolution Process' or 'Liquidation Process', it is found

that any business of the 'Corporate Debtor' has been carried on with intent

to defraud creditors of the 'Corporate Debtor' or for any fraudulent purpose,

the Adjudicating Authority is empowered to pass appropriate order under

Section 67.

76. In the present case, we have noticed that the transactions in question

i.e. mortgage(s) were made in favour of the 'Banks and Financial

Institutions' by the 'Corporate Debtor' ('Jaypee Infratech Limited') in the

ordinary course of business of the 'Corporate Debtor'. The Appellants-

Banks and Financial Institutions have given loans to the holding Company

namely-- 'Jaiprakash Associates Limited'. The 'Corporate Debtor' being one

of the group company, like a guarantor, executed mortgage deed(s) in favour

of the Appellants- 'Banks and Financial Institutions'. We have seen that

none of the transactions were 'preferential transaction' or 'undervalued

transaction'. It has not been alleged that the transactions, in question, were

made to defraud the creditors in terms of Section 49 so allegation has been

made that such transactions amount to 'extortionate credit' as defined

under Section 50. Therefore, the Adjudicating Authority in absence of any

such finding is not empowered to pass order under Section 51. Further, as

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we have held that the transactions were made in the ordinary course of

business in absence of any contrary evidence to show that they were made

to defraud the creditors of the 'Corporate Debtor' or for any fraudulent

purpose, on mere allegation made by the 'Resolution Professional', it was not

open to the Adjudicating Authority to hold that mortgage deeds, in question,

were made by way of transactions which come within the meaning of

'fraudulent trading' or 'wrongful trading' under Section 66.

77. It is not in dispute that all the Appellants had granted loan to

'Jaiprakash Associates Limited'. Majority of Banks (Appellants) functioned

as joint venture. For the said reason, the 'Corporate Debtor' executed

mortgaged deeds in favour of the Appellants. Such transactions having

made in ordinary course of business, the allegation against the Banks and

Financial Institutions (Appellants) are not justified.

78. In fact, the 'Resolution Professional' has submitted that while the

mortgage of land by the company to its related party may not be forbidden

under law, it becomes questionable if it has been done in complete disregard

to the interest of creditors and stakeholders of such company.

79. The Adjudicating Authority having failed to notice the aforesaid

relevant facts and as it misread the provisions of Sections 43, 45 & 66 of the

'I&B Code' and on the basis of wrong presumption and error of fact held that

transactions in question amount to 'preferential transactions' (Section 43);

'undervalued transactions' (Section 45) and 'for fraudulent purpose to

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defraud the creditors of the 'Corporate Debtor' (Section 66), the impugned

order cannot be upheld.

80. For the reasons aforesaid, we set aside the impugned order dated 16th

May, 2018 so far it relates to the Appellants. In view of such findings, the

Appellants- 'Axis Bank Ltd.', 'Standard Chartered Bank', 'ICICI Bank Ltd.',

'State Bank of India', 'Jai Prakash Associates Ltd.', 'Bank of Maharashtra',

'United Bank of India', 'Central Bank of India', 'UCO Bank', 'Karur Vyasa

Bank (P) Ltd.', 'L&T Infrastructure Finance Company Ltd.', 'Canara Bank',

'Karnataka Bank Ltd.', 'IFCI Ltd.', 'Allahabad Bank', 'Jammu & Kashmir

Bank' and 'The South Indian Bank Ltd.' are entitled to exercise their rights

under the 'I&B Code'.

81. All the appeals are allowed. However, we make it clear that we have

not made any observations with regard to the Promoters or Directors in

absence of any appeal preferred on their behalf. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat] Member (Judicial)

NEW DELHI

1st August, 2019

AR

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