Vikram Bhawanishankar Sharma vs Icici Bank Limited

IN THE MATTER OF: Vikram Bhawanishankar Sharma ... Appellant

Versus

ICICI Bank Ltd. & Anr. ... Respondents

Present: For Appellant : Mr. Abhijeet Sinha, Sr. Advocate with Mr. Abhirup Dasgupta, Ms. Jayashree Shukla Dasgupta, Advocates. For Respondents : Mr. Niranjan Reddy, Sr. Advocate with Mr. Siddharth Ranade, Ms. Nishi Bhankaria, Ms. Jeta Shree, Ms. Palak Arora, Advocates for R-1. Mr. Prakash Shinde, Mr. Nishit Dhruva, Ms. Ruchita Jain, Advocates for Canara Bank (Intervener). Mr. Balajee, Sumant Chemote, Advocates for IRP.

ORDER

(Hybrid Mode)

25.02.2025: IA No.922 of 2025 - This application has been filed by

the Appellant challenging order of National Company

Law Tribunal, Mumbai Bench dated 14.02.204, by which order Section

7 Application filed by the ICICI Bank Ltd. was admitted.

2. In the Appeal, an interim order was passed on 21.02.2024

recording the statement of the Appellant that Appellant has submitted a

I.A. No.922 of 2025 in Company Appeal (AT) (Ins.) No.342/2024 1 proposal to the Financial Creditor for consideration. Interim order was

passed on 21.02.2024 was to the following effect:

"21.02.2024: Learned Counsel for the Appellant submits that Appellant has submitted a proposal to the Financial Creditor for consideration. Learned Counsel for the Financial Creditor also prays that Respondent shall require some time to consider the proposal and the Appeal may be listed after three weeks.

2. In view of the aforesaid, we direct the Appeal to be listed on 20th March, 2024. Interim Order already granted shall continue. IRP shall not take any further step in the CIRP.

3. The interim order passed in the Appeal was extended from time to

time. The Appeal ultimately came for consideration on 22.11.2024, on

which date Appellant made a statement that Appellant is endeavouring to

settle the due of the Financial Creditor. This Tribunal took the view that

course open for the Appellant is to take route of 12A of the Insolvency and

Bankruptcy Code, 2016 (hereinafter referred to as the "IBC") through the

Interim Resolution Professional ("IRP"), in event of settlement. The

Appeal was disposed of 22.11.2024. In paragraph 9, 10 and 11, following

was held:

"9. In view of the statement made by the Counsel for the Appellant that they are endeavouring to settle the dues of the Financial Creditors, we are of the view that course open for the Appellant to take route of 12A of the IBC through the IRP, in event of Settlement, the Application be filed through the IRP by the Financial Creditor which need to be

I.A. No.922 of 2025 in Company Appeal (AT) (Ins.) No.342/2024 2 considered in accordance with Section 12A read with Regulation 30A of the CIRP Regulations, 2016.

10. In view of the aforesaid, we see no reason to keep the Appeal pending. The Appeal is disposed of giving the aforesaid liberty, for a period of two weeks. The Interim Protection granted shall continue.

11. After two weeks the proceeding shall be as per the Orders passed by the Adjudicating Authority. In event, the Application under 12A is submitted before the Adjudicating Authority within two weeks, further steps shall be taken after disposal of the Application under Section 12A.

Appeal is disposed of accordingly."

4. Subsequent to the final disposal of the Appeal on 22.11.2024, the

Appellant filed an IA No.8485 of 2024 praying for extension of time

granted by order on 22.11.2024. The period was extended for four weeks

from 06.12.2024 by order dated 04.12.2024. Appellant/ Applicant again

filed an IA No.24 of 2025 seeking extension of time and time was extended

till 27.01.2025. Another IA No.615 of 2025 was filed by the Appellant/

Applicant praying for extension of time as allowed by order dated

22.11.2024. This Tribunal while disposing of the said application

observed following in paragraphs 4, 5 and 6:

"4. Learned Sr. Counsel Mr. Niranjan Reddy appearing on behalf of the ICICI Bank submits that in event the amount is received from the Appellant the Settlement shall be over as far as the ICICI Bank and the said was condition which was always indicated.

5. Learned Counsel for the Canara Bank submits that the Applicant are in discussion with the Canara Bank and

I.A. No.922 of 2025 in Company Appeal (AT) (Ins.) No.342/2024 3 if the Court is inclined only last opportunity till 07.02.2025 as prayed by the Applicant in his submissions be granted.

6. Considering the facts of the present case and submissions made by Parties, we are of the view that this Application needs to be disposed of by extending the time till 07.02.2025. We make it clear that in event, no Application is filed by 12A, CIRP Process against the Corporate Debtor shall commence and proceed in accordance with law. No further Application for extension shall be entertained.

Application is disposed of."

5. In paragraph 6 of the above order, we have made it clear that "We

make it clear that in event, no Application is filed by 12A, CIRP Process

against the Corporate Debtor shall commence and proceed in accordance

with law. No further Application for extension shall be entertained."

Subsequent to the order dated 29.01.2025, another IA being IA No.922 of

2025 has been filed by the Appellant/ Applicant, in which application, the

Applicant has prayed for following directions:

"i. Allow the present Application;

ii. Pass directions for extension of the time period granted by the Order dated 22.11.2024 passed in Company Appeal (A T)(INS) No. 342 of 2024 read with Order dated 04.12.2024 passed in I.A. No. 8485 of2024 and Order dated 07.01.2025 passed in I.A. No. 24 of 2025 and Order dated 29.01.2025 in I.A. No. 615 of 2025 in Company Appeal (AT)(INS) No. 342 of2024 to place the Application under Section 12A of the IBC by a further period till 17.02.2025;

I.A. No.922 of 2025 in Company Appeal (AT) (Ins.) No.342/2024 4 iii. Pass orders that the Interim Order dated 21.02.2024 passed in Company Appeal (AT)(INS) No. 342 of 2024 be continued during the extended period till 17.02.2025;

iv. Pass any other order as this Hon'ble Appellate Tribunal may deem fit and proper in the present facts and circumstances."

6. The Appellant's case in the application is that the terms of the

settlement between the Appellant and the ICICI Bank have been finalized.

It is submitted that ICICI Bank has issued Amendatory Settlement letter

dated 06.01.2025 and 18.01.2025, where Terms of Settlement proposed

by the Appellant were significantly and unilaterally modified. The

Appellant submits that settlement amount between the parties have

already been freezed and finalized and only disagreement between the

parties is with regard to terms contained in the Amendatory Sanction

Letter that after deposit of the amount and after issuance of written

instructions to IRP to file an application for withdrawal of the Company

Petition, the amount deposited in the Escrow Account shall be transferred

to Collection Account. Referring to the letter dated 18.01.2024 of the

ICICI Bank, the Appellant has referred to Clause-e, which is as follows:

"Other conditions e. Immediately upon e. On or before the [please note that the issue of instructions Due Date, the entire amendments ore for withdrawal of the Settlement Amount only in respect to SHHPL CIRP to IRP shall be released paragraph e] by ICICI and deposit from the Fund of a copy of such Escrow Account to instructions with the the collection Escrow Agent, the account of ICICI

I.A. No.922 of 2025 in Company Appeal (AT) (Ins.) No.342/2024 5 entire Settlement Bank specified by Amount shall be the ICICI Bank released from the ("ICICI Collection Fund Escrow Account")."

Account to the collection account of ICICI Bank specified by the ICICI Bank r1c1c1 Collection Account ").

7. The Appellant's case is that the Appellant has agreed to all Terms of

Contract put forth by the ICICI Bank and the Investors of the Appellant

have also agreed to the terms and Investors also ready to deposit the

amount the amount in the Escrow Account.

8. The application filed by the Appellant has been opposed by the

ICICI Bank and a limited affidavit in reply has been filed. In the affidavit

in reply filed on behalf of the ICICI Bank, it has been submitted that in

lieu of receiving the settlement amount of Rs.73.84 crores, Respondent

No.1 has agreed to release the security and guarantee created by the

Corporate Debtor ("CD") in favour of Respondent No.1. It is submitted

that as per Settlement Letter dated 18.12.2024, which provided for

payment schedule on or before 31.12.2024, the Appellant has never given

his consent, agreeing with the Terms and it was due to Appellant's own

delay that settlement could not fructify. It is pleaded that out of

settlement amount and amount of Rs.3.70 crores, i.e. 5% of the

settlement amount was handed over to Respondent No.1 on 07.01.2025.

I.A. No.922 of 2025 in Company Appeal (AT) (Ins.) No.342/2024 6 It is pleaded that although the Appellant on its own statement, it has

agreed with all terms and conditions put forth by Respondent No.1,

whereas the Appellant is not counter signing the Settlement Letter, so as

to accept the Settlement Proposal. Respondent No.1 opposes the

application for extension of any further time. Learned Counsel for

Respondent has specifically referred to the order of this Tribunal passed

on 29.01.2025 in IA No.615 of 2025, where this Tribunal has observed

that "in event, no Application is filed by 12A, CIRP Process against the

Corporate Debtor shall commence". It is submitted that interim order in

this Appeal is continuing from 21.02.2024 and a period of one year has

elapsed and Appellant has not agreed to all Terms of Settlement. Hence,

no application could be filed by the ICICI Bank under Section 12A.

9. We have heard Shri Abhijeet Sinha, learned Senior Counsel for the

Appellant and Shri Niranjan Reddy, learned Senior Counsel for ICICI

Bank.

10. Learned Counsel for the Appellant submitted that the Appellant is

ready to deposit the entire balance amount in this Tribunal. He further

submits that ICICI Bank condition in the settlement that after depositing

all the amount in the Escrow Account by the Appellant, the said amount

shall be transferred in the Collection Account, indicate that even before

decision is taken on 12A application, ICICI Bank shall appropriate the

amount deposited. It is submitted that the amount, which is being

I.A. No.922 of 2025 in Company Appeal (AT) (Ins.) No.342/2024 7 brought by Investors, cannot be permitted to be appropriated by ICICI

Bank before 12A application is decided.

11. We have already noticed the letter dated 18.01.2025, which is a

Amendatory Settlement Letter, which was issued by ICICI Bank and the

Clause-e, existing clause and amended clause, where both the clauses

contemplate that on or before the due date, the entire Settlement Amount

shall be released from the Fund Escrow Account to the Collection Account

of the ICICI Bank. The settlement between the parties can be arrived only

when both the parties agrees with all terms and conditions. We while

considering IA No.922 of 2025, cannot issue any direction to modify or

change the Terms of Settlement as proposed by the ICICI Bank. We have

noted above that Appeal was disposed of on 22.11.2024, permitting

Financial Creditor to file 12A application within the time allowed, which

time was extended from time to time. From the facts brought on record, it

is clear that as on date, both the parties have not agreed and signed any

Settlement Agreement, so that an application under Section 12A can be

filed for withdrawal of the CIRP. We have already noticed the submission

of the learned Counsel for the Canara Bank, who has claimed that it has

also dues on the Corporate Debtor, who also contends that no further

indulgence be granted to the Appellant.

12. After having heard the submissions of learned Counsel for the

parties and taking into consideration the various orders passed in this

Appeal and the final order on 22.11.2024 and subsequent orders,

I.A. No.922 of 2025 in Company Appeal (AT) (Ins.) No.342/2024 8 extending time for filing 12A application, including order dated

29.01.2025 passed in IA No.615 of 2025, we are of the view that the

Appellant is not entitled for any further extension, as prayed in IA No.922

of 2025. In result, IA No.922 of 2025 is rejected. In consequence of

rejection of IA No.922 of 2025, as directed on 29.01.2025, CIRP against

the Corporate Debtor shall commence and proceeded in accordance with

law. IA No.922 of 2025 is dismissed accordingly.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical)

NEW DELHI

Ashwani

I.A. No.922 of 2025 in Company Appeal (AT) (Ins.) No.342/2024 9