Case: Gtl Infrastructure Limited Vs. Canara Bank and 6 Others

5. The petitioner claims that in and around 2007-2008, it availed financial facilities from various banks and financial institutions in India, including respondent Nos.1 to 6 with a view to expand its business. Thereafter, it says that, owing to certain unforeseen circumstances, increased competition etc., the telecom industry suffered extensively and the petitioner was unable to comply with its obligations under the documents relating to the sanction of financial facilities. The petitioners debt was referred to the Corporate Debt Restructuring Cell (CDR Cell). Pursuant thereto, the CDR Cell issued a Letter of Approval dated 23rd December, 2011 and restructured the petitioners debt on the terms and conditions more particularly set out therein. Pursuant to the issuance of the Letter of Approval by the CDR Cell, the petitioners lenders and the petitioner executed a Master Restructuring Agreement, copy of which is at Exhibit ‘A to the petition. It is dated 31st December, 2011.The Reserve Bank of India issued a notification dated 8 th June, 2015 bearing No.DBR.BP.BC.No.101/21.04.132/2014-15 in respect of Strategic Debt Restructuring (SDR Notification). At a Joint Lenders Forum (JLF) meeting held on September 20, 2016 (Review and Reference Date), the lenders of the Petitioner, including respondent Nos.1 to 6, invoked the SDR Notification in respect of the petitioner and M/S Chennai Network Infrastructure Limited (for short, CNIL). A copy of the minutes of the JLF meeting dated 20th September, 2016 is annexed as Exhibit ‘B to the petition. Pursuant thereto, the JLF through the Union Bank of India, which is a monitoring institution, executed a term sheet containing detailed terms and conditions of the scheme to be implemented in respect of the petitioner under the SDR Notification. The said term sheet was forwarded by the Union of Bank of India to the petitioner under a cover letter dated 14th June, 2017 alongwith the term sheet for the SDR scheme, copy of which, alongwith the terms sheet for the SDR scheme, is annexed as Exhibit ‘C to the petition. Similarly, the JLF, through the Union Bank of India, executed a term sheet containing detailed terms and conditions of the scheme to be implemented in respect of CNIL under the SDR Notification. The said term sheet was forwarded by the Union Bank of India to CNIL under a cover letter dated 14th June, 2017, copy of which alongwith the term sheet for the SDR scheme is annexed as Exhibit ‘D to the petition.The petitioner submits that the total outstanding dues of the petitioner to its lenders as on the Review and Reference date was Rs.3357,13,19,841 (Rupees Three Thousand Three Hundred and Fifty Seven Crores Thirteen Lakhs Nineteen Thousand Eight Hundred and Forty One Only). A table detailing the dues owed by the petitioner to each of its lenders as on the Review and Reference Date is annexed as Exhibit ‘E to the petition. Similarly, the total outstanding dues of CNIL to its lenders, as on the Review and Reference date, were Rs.5158,10,36,665 (Rupees Five Thousand One Hundred and Fifty Eight Crores Ten Lakhs Thirty Six Thousand Six Hundred and Sixty Five Only). A table detailing the dues owed by CNIL to each of its lenders as on the Review and Reference Date is annexed as Exhibit ‘F to the petition.The petitioner further states that the scheme under the SDR Notification (SDR scheme) envisages participation by all the lenders of the petitioner and CNIL, including respondent Nos.1 to 6, to convert the whole or part of their respective debts into equity share capital of the petitioner or CNIL, as the case may be. Once the conversion was completed, then, the lenders would sell the equity shares held by the lenders in the petitioner or CNIL to a new promoter and upon completion of conversion of debt to equity, the existing asset classifaciton of the petitioner and CNIL, as on the Review and Reference Date, would continue for a period of eighteen months from the Review and Reference Date.It is further submitted that pursuant to execution of the SDR term sheets, the debt of the lenders, including respondent Nos.1 to 6, to the extent of Rs.1692,21,58,070 (Rupees One Thousand Six Hundred and Ninety Two Crores Twenty One Lakhs Fifty Eight Thousand and Seventy only), was converted into fully paid up equity shares of the petitioner on and around 13th April, 2017 and only an amount of Rs.1758,41,96,635 (Rupees One Thousand Seven Hundred and Fifty Eight Crores Forty One Lakhs Ninety Six Thousand Six Hundred and Thirty Five only) remained outstanding from the petitioner.It is further submitted that similarly, as regards CNIL, the debt of the lenders, including respondent Nos.1 to 6, to the extent of Rs.2808,95,53,920 (Rupees Two Thousand Eight Hundred and Eight Crores Ninety Five Lakhs Fifty Three Thousand Nine Hundred and Twenty only) was converted into full paid up equity shares of CNIL on and around 13th April, 2017 and only an amount of Rs.2385,08,72,011 (Rupees Two Thousand Three Hundred and Eighty Five Crores Eight Lakhs Seventy Two Thousand and Eleven only) remained outstanding. The details of the outstanding debt of the lenders, including respondent Nos.1 to 6, pursuant to the aforesaid conversion of debt into equity shares and the details of the shares of the petitioner and CNIL held by the lenders, including respondent Nos.1 to 6, are annexed as Exhibit ‘G collectively. The petitioner submits that it would not be out of place to mention that pursuant to the implementation of the SDR Scheme and merger of CNIL and the petitioner, the lenders, including respondent Nos.1 to 6 together held 63.16% of shareholding in the petitioner.The petitioner submits that thereafter, during the implementation of the SDR scheme, the petitioner paid an amount of Rs.1069,00,00,000 (Rupees One Thousand and Sixty Nine Crores only) towards interest to the lenders, including respondent Nos.1 to 6 and Rs.75,00,00,000 (Rupees Seventy Five Crores only) on 22nd June, 2018 and 27th June, 2018 towards the first principal repayment tranche. Upon conversion of debt into equity shares of the petitioner, all amounts, overdue prior to the date of conversion, were converted into equity shares. Therefore, post conversion, there were no outstanding payments overdue to be paid by the petitioner in any manner.It is submitted by the petitioner that meanwhile, the lenders of the petitioner, including respondent Nos.1 to 6, attempted to find an investor to sell their stake in the petitioner. However, despite extensive assistance from the petitioner, the lenders, including respondent Nos.1 to 6, failed to find an investor and thereby defaulted in their obligation under the SDR Scheme. The petitioner states that it did not default on any of its obligations, including repayment of the debt, under the SDR scheme and co-operated to the maximum extent possible with the lenders to find a new investor. The obligation to find the new investor and transfer their respective shareholding in the petitioner to a new investor was that of the lenders alone under the SDR Scheme and the lenders of the petitioner failed to do the same. The petitioner further states that respondent Nos.1 to 6, alongwith other lenders of the petitioner commenced a ‘new investor induction process which was supported and facilitated by the petitioner and experienced advisors of like Ernst and Young and TAP Advisors were appointed. The petitioner initially received interest from over 20 investors, including the likes of Brookfield Asset Management and American Tower Company. Potential bidders were given access to the data room as part of a diligence process, followed by management discussions. Some of the key investors, including Brookfield Asset Management and American Tower Company withdrew from the process due to extraneous reasons like the entry of new aggressive participant in the market, uncertainty regarding the future of Aircel, and shutting down of telecom operators like Rcom, Tata Tele, SSTL and Telenor. Post completion of the due-diligence process, the petitioner received non-bonding term sheets from 3 investors i.e. AION Capital, Beam Group LLC and a consortium of Piramal Enterprises and Bain Capital Credit. However, owing to the aforementioned adverse circumstances, the consortium of Piramal Enterprises and Bain Capital Credit withdrew from the process and AION Capital and Beam Group LLC also did not pursue their respective offers.The petitioner further submits that since the lenders, including respondent Nos. 1 to 6 were uncertain of the induction of a new investor into the petitioner and the consequent completion of the SDR Scheme, the lenders considered selling their respective debts to an Asset Reconstruction Company (ARC). Accordingly, on 23rd January, 2018, in the meeting of the Core Committee of the lenders of the petitioner, it was deliberated by the lenders to consider a sale of their respective debts to an ARC. In the meeting dated 23rd January, 2018, the Core Committee of the lenders was also informed that respondent No.7 had evinced an interest in buying the debt of the lenders of the petitioner. It is pertinent to note that the decision to sell the petitioners debt to an ARC was the sole decision of the lenders of the petitioner and their consultants and neither the promoter of the promoter nor the petitioner itself were involved in the said decision making process at any time. Copy of the minutes of the meeting of the Core Committee of the lenders held on 23rd January, 2018 is annexed to the petition as Exhibit ‘H. Notably, the meeting dated 23rd January, 2018 was, inter alia, attended by the representatives of respondent Nos. 1, 5 and 6.Thereafter, at the joint lenders meeting dated 30th January, 2018, the lenders of the petitioner deliberated the proposal to sell the entire debt of the petitioner to an ARC. Copy of the minutes of the joint lenders meeting held on 30th January, 2018 is annexed as Exhibit ‘I to the petition.It is further submitted that the proposition to sell the debts of the lenders to an ARC was further discussed at the meeting of the Core Committee of the lenders of the petitioner on 2 nd February, 2018. Pertinently, the proposed sale of assets to an ARC was on 50:50 basis i.e. 50% consideration for sale of asset would be cash and 50% consideration for sale of asset would be security receipts to be issued by the proposed ARC. However, at the meeting held on 2nd February, 2018, respondent No.1 inquired as to whether the cash consideration for sale of assets to an ARC could be increased to more than 50% in order to comply with certain guidelines issued by the RBI. Accordingly, it was agreed to increase the cash consideration of the sale of asset to an ARC to 51%. Further, modifications to the term sheet for the transaction with an ARC were discussed and agreed and it was decided that the term sheets for the transaction with an ARC would be finalised in the next meeting of the lenders. A copy of the minutes of the meeting of the Core Committee of the lenders dated 2nd February, 2018 is annexed to the petition as Exhibit ‘J. The meeting of the Core Committee of the lenders dated 2nd February, 2018 was attended by respondent Nos.1, 5 and 6.Thereafter, the lenders of the petitioner further negotiated the terms of the sale of the debt of the petitioner to an ARC at a Joint Lenders Meeting held on 12th February, 2018. At the meeting dated 12th February, 2018, the representative of the CDR Empowered Group stated that if the lenders were to sell their debt to an ARC, the monitoring institution (Union Bank of India) ought to circulate a review note on exit of the petitioner from CDR. A copy of the minutes of the Joint Lenders Meeting dated 12th February, 2018 is annexed as Exhibit ‘K to the petition. The said meeting was attended by the representative of respondent Nos. 1, 2, 3 and 5.It is further submitted that pursuant to the discussions and consensus arrived at between the lenders of the petitioner, a process for sale of the petitioners debt to an ARC was initiated and the bids were invited from the ARCs by giving a public notice published in two newspapers on 28th February, 2018. Exhibit ‘L collectively is the copy of the said publication in the newspapers. At the end of the bidding process, only one binding bid was received, which was made by respondent No.7 jointly with Bank of America Merill Lynch (BAML). The bid of respondent No.7 BAML was discussed by the lenders at the meeting of the consortium of lenders of the petitioner on 23rd March, 2018. As per the joint bid of respondent No.7 and BAML, respondent No.7 and BAML were ready and willing to buy the complete debt of Rs.4143,00,00,000/- (Rupees Four Thousand One Hundred and Forty Three Crores only) owned by the petitioner to its lenders, in consideration of Rs.2000,00,00,000/- (Rupees Two Thousand Crores only) along with transfer of underlying security interest. During the said meeting of the consortium of lenders, ICICI Bank queried whether respondent No.7 would consummate the transaction if only some of the lenders are willing to assign the debt. Respondent No.7 clarified that the offer then extended by respondent No.7 was contingent on 100% of the lenders assigning their debt and piecemeal purchase of the debt from each lender would entail substantial reduction in the consideration being offered by respondent No.7. Respondent No.7 further stated that in such a situation, respondent No.7 would be able to offer only around Rs.1500,00,00,000/- (Rupees one Thousand and Five Hundred Crores only) to Rs.1800,00,00,000/- (Rupees One Thousand and Eight Hundred Crores only). Thus, to facilitate aggregation of debts as envisaged by the relevant RBI circular and mandated by the IRAC guidelines, it was always understood between the lenders including respondent Nos. 1 to 6, consultants and respondent No.7 that a 100% assignment of the debt of the petitioner would help to realise the best value for all the lenders of the petitioner. Further, during the meeting, Ernst and Young emphasised that the process of evaluating the sale of the petitioners debt to an ARC was commenced pursuant to the instructions of the lenders of the petitioner in view of the fact that the SDR Scheme had to be abandoned due to extraneous circumstances. A copy of the minutes of the meeting of the consortium of lenders of the petitioner dated 23rd March, 2018 is annexed as Exhibit ‘M to the petition. The petitioner submits that for the sake of completeness, it must be noted that though respondent No.7 could not acquire 100% of the debt of the petitioner, respondent No.7 acquired the debt on a cluster basis rather than piecemeal basis to enable the lenders of the petiitoner to realise the best value of their respective debts on one hand, commercial considerations on the other hand and keeping in view the intention of the RBI circulars.The petitioner further submits that in the meeting of the consortium of the petitioners lenders dated 3rd April, 2018, it was noted that majority of the lenders were agreeable to sale off their respective debts to respondent No.7 and the lenders decided to obtain their respective internal approvals for the proposed transaction with respondent No.7 and BAML. The said meeting was inter alia attended by respondent Nos.1 to 6. Copy of the minutes of the meeting dated 3rd April, 2018 is annexed as Exhibit ‘N to the petition.Even while the process for sale to an ARC was under consideration, the petitioner proactively submitted a resolution plan vide letter dated 27th April, 2018 (Exhibit ‘O). However, in view of the ARC sale process, the resolution plan submitted by the petitioner was not considered by the lenders.By letter dated 8th May, 2018 (Exhibit ‘P), the promoter of the petitioner expressed its support for the sale of the debt of the petitioner to an ARC chosen by the lenders of the petitioner.Thereafter, in a meeting of all the lenders, including respondent Nos. 1 to 6, held on 24th May, 2018, the lenders, including respondent Nos. 1 to 6 decided to carry out a so-called Swiss-auction process for concluding the debt sale transaction with a reserve price of INR 2,400 Crores.Thereafter, the Union Bank of India (the monitoring institution) issued an advertisement inviting an expression of interest from potential investors (ARCs, Banks and Non Banking Financial Companies), in two newspapers on 28th June, 2018. Exhibit ‘Q is the copy of the newspaper advertisement issued on 27th June, 2018 by the Union of India.However, no further bids were received by the lenders and meanwhile, during the negotiations with the lenders of the petitioner, respondent No.7 had raised its offer to purchase the entire debt of the petitioner of Rs.2400,00,00,000/- (Rupees Two Thousand and Four Hundred Crores only). Therefore, by a letter dated 11th July, 2018, the Union Bank of India declared the bid of respondent No.7 and BAML as H1 or highest Bidder so as to enable all the lenders to seek the consent of their respective competent authorities in this regard.On 13th July, 2018, at a meeting of the lenders of the petitioner, including respondent Nos. 1 to 6, it was expressly recorded in the minutes of the meeting that since no counter bid was received from the above investors within the stipulated time lines, by virtue of the ROFR, the offer of Rs.2400.00 crores by the BoAML-EARC has been accepted for the proposed sale.Pursuant thereto, a note was prepared by Union Bank of India and circulated to all the lenders of the petitioner vide an email dated 17th July, 2018. The petitioner submits that a bare reading of this note speaks volumes of the extremely cogent and valid reasons that formed the basis of the unanimous decision of the lenders of the petitioner, including respondent Nos. 1 to 6 to sell their debts in favour of respondent No.7. Exhibit ‘R to the petition is a copy of the note prepared and circulated by the Union Bank of India to all the lenders of the petitioner, including respondent Nos.1 to 6.The petitioner further submits that in view of the aforementioned discussions and the decision of the lenders of the petitioner to assign their debt to respondent No.7 (acting in its capacity as the trustee of EARC Trust – SC 338), by an assignment agreement dated 27th August, 2018, Union Bank of India, Andhra Bank, Punjab National Bank, Bank of India, Dena bank, State bank of India, Bank of Baroda, Axis Bank Ltd., Indian Overseas Bank and ICICI Bank Ltd. assigned all their rights, title and interest in the financial assistance granted by them to the petitioner in favour of respondent No.7.The fact that the debt of the Union Bank of India, Andhra Bank, Punjab National Bank, Bank of India, Dena Bank, State Bank of India, Bank of Baroda, Axis Bank Ltd., Indian Overseas bank and ICICI Bank Ltd. was assigned to respondent No.7 was communicated by respondent No.7 to the petitioner vide letter dated 29th August, 2018, copy of which is annexed as Exhibit ‘S to the petition.Similarly, Oriental Bank of Commerce and Central Bank of India also assigned all their rights, title and interest in the financial assistance granted by them to the petitioner in favour of respondent No.7 in its capacity as trustee of EARC Trust – SC 343 by executing an assignment agreement dated 7th September, 2018.The fact that the debt of the Oriental Bank of Commerce and Central bank of India was assigned to respondent No.7 was communicated by respondent No.7 to the petitioner vide letter dated 10th September, 2018 (Exhibit ‘T)In view of the above assignments, respondent No.7 acquired 77.07% (by value) of the debt of the petitioner. Accordingly, whilst relying on the IRAC Guidelines, by a letter dated 12th September, 2018, respondent No.7 called upon respondent Nos. 1 to 6 and United Bank of India to assign their respective debts owed by the petitioner in favour of respondent No.7. Exhibit ‘U is a copy of the letter dated 12th September, 2018 addressed by respondent No.7 to respondent Nos. 1 to 6 and United Bank of India.In compliance with the request of respondent No.7, United Bank of India assigned its rights, title and interest in the financial assistance granted by it to the petitioner in favour of respondent No.7 acting in its capacity as trustee of EARC Trust- SC 366 vide an assignment agreement dated 29th March, 2019.The said fact was communicated by respondent No.7 to the petitioner vide letter dated 1st April, 2019. Exhibit ‘V to the petition is a copy of the letter dated 1st April, 2019 addressed by respondent No.7 to the petitioner.The details of the debts assigned to respondent No.7 are asThe petitioner further states that in the meanwhile, by a letter dated 27th June, 2018, addressed by respondent No.1 to the petition, respondent No. 1 contended that the SDR Scheme had failed; the account of the petitioner has been classified as an NPA retrospectively with effect form 1st July, 2011 (the CDR reference date) and therefore, sought repayment of the entire pre-CDR debt owed by the petitioner to respondent No.1. A copy of the letter dated 27th June, 2018 addressed by respondent No.1 to the petitioner is annexed as Exhibit ‘W to the petition.The petitioner replied to respondent No.1s letter dated 27th June, 2018 by a letter dated 10th July, 2018 (Exhibit ‘X) and highlighted that no financial default had been committed by the petitioner under the SDR Scheme and therefore, the contentions of respondent No.1 were misplaced.Respondent No.1 reiterated its demand for repayment of the entire pre-CDR debt owed by the petitioner to respondent No.1 by letters dated 13th July, 2018 and 4th August, 2018 (Exhibits ‘Y and ‘Z). The petitioner responded to the letter dated 13th July, 2018 by a letter dated 23rd July, 2018 (Exhibit ‘AA).Despite the petitioner addressing the aforementioned letters dated 10th July, 2018, 23rd July, 2018 and elucidating why no default had taken place, by a letter dated 23rd August, 2018, respondent No.1 recalled the financial facilities granted by it to the petitioner and called upon the petitioner to pay a sum of Rs.540, 35,00,000/- (Rupees Five Hundred and Forty Crores and Thirty Five Lakhs only). Copy of the letter dated 23rd August, 2018 of respondent No.1 is annexed as Exhibit ‘BB to the petition.The petitioner further submits that pertinently, despite agreeing to a sale to an ARC, in the aforementioned meetings of the lenders of the petitioner, on 3rd August, 2018 i.e. almost 6 months after agreeing to the sale, respondent No.1 addressed a letter to the Union Bank of India, opposing the proposed sale to respondent No.7 and raised totally irrelevant, extraneous and misconceived objections. By the said letter, respondent No.1 also expressed its intention to initiate proceedings under the IBC against the petitioner. Copy of the letter dated 3rd August, 2018 is annexed to the petition as Exhibit ‘CC.The petitioner challenged the retrospective declaration of the petitioner to be in default and an NPA with effect from 1st July, 2011 as being ex-facie unjustified, illegal and arbitrary, before the Madras High Court in Writ Petition No.22687 of 2018. The petitioner had also filed Writ Petition No.22688 of 2018 before the Madras High Court seeking a declaration that the threshold for deciding sale of the debt of the petitioner to an Asset Reconstruction Company/ Securitisation Company is (i) 66% (sixty per cent) in value of the lenders in accordance with the provisions of the revised framework circular issued by the Reserve Bank of India; or (ii) in the alternative, 75% (seventy five per cent) in value of the lenders in accordance with the IRAC guidelines.On 14th September, 2018, the petitioner filed a memo before the Honble Madras High Court seeking to withdraw Writ Petition No.22688 of 2018 on account of lack of jurisdiction of the Madras High Court to entertain the said writ petition. The Madras High Court allowed the petitioner to withdraw Writ Petition No.22688 of 2018 with liberty to file appropriate proceedings in accordance with law.The petitioner further submits that in the meanwhile, on 12th February, 2018, the RBI issued an illegal, arbitrary and unconstitutional guidelines titled as Resolution of Stressed Assets – Revised Framework (Revised Framework Circular) for the resolution of stressed assets.On 14th September, 2018, relying upon the Revised Framework Circular, respondent No.1, purportedly, in its capacity as a Financial Creditor of the petitioner, filed Company Petition (IB)-3604(MB)/2018) before the National Company Law Tribunal (NCLT), Mumbai under section 7 of the IBC, which is presently pending final disposal.The petitioner further submits that on 19th September, 2018, the petitioner filed Writ Petition (Civil) No.1156 of 2018 before the Honble Supreme Court of India, inter alia, seeking to quash the Revised Framework Circular. Respondent No.1 contested the said writ petition by filing an affidavit in reply dated 24th November, 2018. Pertinently, respondent No.1 annexed a typed copy of the minutes of a meeting of the consortium of the lenders of the petitioner dated 13th July, 2018, wherein, it was expressly recorded that since no counter bid was received from the above investors within the stipulated timeline, by virtue of the ROFR, the offer of Rs.2400.00 crores by the BoAML-EARC has been accepted for the proposed sale. A copy of the typed minutes of the meeting of the consortium dated 13th July, 2018 is annexed as Exhibit ‘DD to the petition. Further, the RBI also filed written submissions in Writ Petition (Civil) No.1156 of 2018, copy of which is annexed as Exhibit ‘EE to the petition.By a judgment dated 2nd April, 2019, the Honble Supreme Court was pleased to declare that the Revised Framework Circular was ultra vires and consequently, all actions taken under the Revised Framework Circular, including actions by which proceedings were filed under the IBC, were non-est.On the above allegations and in the light of the judgment of the Honble Supreme Court delivered in Writ Petition (Civil) No.1156 of 2018 dated 2nd April, 2019, it is urged that the proceedings under the Insolvency and Bankruptcy Code, 2016 (For short, the IBC) are liable to be dismissed. The further averment in the petition is that respondent Nos.1 to 6 are required to comply with the extant guidelines of the Reserve Bank of India, including the Income Recognition and Asset Classification (IRAC) guidelines. Since 78.93% lenders of the petitioner have assigned their respective debts to respondent No.7, as per the IRAC guidelines, respondent Nos.1 to 6 are bound to assign their respective debts to respondent No.7 as well. The petitioner is impugning the actions/omissions of respondent Nos.1 to 6 on the grounds set out in the petition. In ground B, reliance is placed upon para 6.4 of the IRAC guidelines, which reads as underProcedure for sale of Banks/ FIs financial assets to ARC including valuation and pricingi) In the case of consortium/ multiple banking arrangements, if 75% (by value) of the banks/ FIs decide to accept the offer, the remaining banks/ FIs will be obligated to accept the. The averment in the petition is that respondent Nos.1 to 6 are bound by the said guidelines issued by Reserve Bank of India. In the present case, since more than 75%(by value) of the lenders of the petitioner have assigned all their rights, title and interest in the financial facilities granted by them to the petitioner, in favour of respondent No.7, by executing Assignment Agreements, all other lenders of the petitioner are also obliged to accept the offer of respondent No.7 for assignment of their respective rights, title and interest in the financial facilities granted to the petitioner. In view of the IRAC guidelines, respondent Nos.1 to 6 are not entitled to treat themselves as creditors of the petitioner and must mandatorily assign their debts to respondent No.7. Since they have failed to assign their respective debts to respondent No.7, respondent Nos.1 to 6 are in blatant violation of IRAC guidelines. The IRAC guidelines constitute a law. The actions of respondent Nos.1 to 6 are not only illegal, but also arbitrary and violative of Article 14 of the Constitution of India. Thereafter in other grounds, particularly, grounds (D) to (Q) of the petition, it is submitted that respondent Nos.1 to 6 be directed by a writ of mandamus or a direction in the nature of mandamus to assign their respective debt owed by the petitioner in favour of respondent No.7 in terms of the IRAC guidelines.In para 7 of the petition it is said that since the proceedings filed by respondent No.1 under the IBC seeking initiation of the corporate insolvency resolution process in respect of the petitioner is pending, the petitioner apprehends that respondent Nos.1 to 6 may also continue to assert their purported rights as financial creditors of the petitioner and file similar proceedings against the petitioner under the IBC. If the corporate insolvency resolution process is initiated against the petitioner, the same will cause irreparable injury not only to the petitioner, but also to all stakeholders of the petitioner, including the lenders. Further, the initiation of the corporate insolvency resolution process will also render the present petition infructuous. The breach of clause 6.4.d (ii) of the IRAC guidelines is alleged. For all these reasons, the present petition seeks the above referred relief.This petition is filed on 26th April, 2019 and it was listed before a Division Bench of this Court on 30th April, 2019. No orders were passed and liberty was granted to the petitioner to move the Vacation Court. The petitioner appeared before us on 3rd December, 2019, but it could not be taken up. It was, therefore, adjourned to 18th February, 2020. However, the advocates for the petitioner moved a praecipe on 20th January, 2020 in view of the following termsTHE HIGH COURT OF JUDICATURE ATRIT PETITION No.1893 OFINFRASTRUCTURE LIMITED .CANARA BANK & ORS.Prothonotary and SeniorE PLEASED TO list the above Writ Petition before the Division Bench of Honble Mr.Justice S.C.Dharmadhikari and Honble Mr.Justice R.I.Chagla in the Bombay High Court on ________ when the Advocates for the Petitioner will seek urgent ad-interim reliefs in the following facts and circumstances.The Petitioner filed the above Writ Petition seeking a writ of mandamus against the Respondent Nos.1 to 6 to assign the debts owed by the Petitioner to the Respondent Nos.1 to 6 in favour of the Respondent No.7 as mandated by the Reserve Bank of India (RBI) under Prudential Norms on Income Recognition, Assets Classification and Provisioning Pertaining to Advances dated July 1, 2015 (IRAC Guidelines) and pending such assignment to refrain from taking any recovery/coercive measures against the Petitioner.The Petitioner submits that since more than 75% of the lenders of the Petitioner have assigned their respective rights to Respondent No.7 i.e. an Asset Reconstruction Company, as per the IRAC Guidelines, Respondent Nos.1 to Respondent No.6 are also obligated to assign their respective debts to Respondent No.7.However, Respondent No.1 has filed an Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 against the Petitioner before the NCLT, Mumbai claiming to be a financial creditor while acting in breach of the IRAC Guidelines. The said Application filed by Respondent No.1 to initiate the corporate insolvency resolution process against the Respondent is next scheduled to be listed before the NCLT, Mumbai on January 30, 2020.In the above circumstances, the Petitioner submits that if the above Writ Petition is not heard urgently for ad interim and interim reliefs sought therein and Respondent No.1s Application under Section 7 of the IBC is admitted by the NCLT, Mumbai, the above Writ Petition would be renderedthe above facts and circumstances, BE PLEASED TO list the above Writ Petition before the Division Bench of Honble Mr.Justice S.C.Dharmadhikari and Honble Mr.Justice R.I.Chagla in the Bombay High Court on April 30, 2019 when the Advocates for the Petitioner will seek urgent ad-interimthis 20th day of January,s for theIn view of the same, this matter was listed on 29th January, 2020 and on that date, we took on record the rejoinder affidavit dated 22nd January, 2020 tendered by the advocate for the petitioner.

Reasoning: 71. To appreciate the arguments of Mr.Kamdar and Mr.Seervai, we must first refer to the settled principles, which enable us to issue a writ of mandamus. In both matters, a writ of mandamus is claimed. That writ cannot be issued as a matter of course. It cannot be issued on the mere asking of it. It cannot be issued merely because the petitioners feel that it should be issued. The petitioner will have to prove that there is a pre-existing and pre-established legal right and a corresponding duty, which alone would enable us to issue thisthis part of the Circular would require a closer look. The said aspect is found in Part A, 3, 4 and 5. That says, an asset can be termed as Non Performing Asset, if it satisfies the criteria laid down in the definition of this expression. Firstly, this part says that in line with the international practices and as per the recommendations made by the Committee on the Financial System, the Reserve Bank of India has introduced, in a phased manner, the norms styled as prudential norms for income recognition, asset classification and provisioning for the advances portfolio of the banks. Pertinently, Mr.Kamdar does not point out that it is to move towards greater consistency and transparency in the published accounts that the policy has been brought into effect. It is clarified that this policy should be objective and based on record of recovery rather than on any subjective considerations. Likewise, the classification of assets of banks has to be done on the basis of objective criteria, which would ensure a uniform and consistent application of the norms. Importantly, the provisioning should be made on the basis of the classification of assets based on the period for which the asset has remained non-performing and the availability of security and the realisable value thereof. The banks are urged to ensure that while granting loans and advances, the repayment schedules fixed should be realistic. It should promote prompt repayment by the borrowers and thus improve the recovery of advances. Mr.Kamdar does not say that the policy of income recognition is any way faulty or defective. He relies upon this policy, but ultimately, there is a discretion vesting in the financial institutions. The asset classification has to be based by determining the assets as Substandard Assets, Doubtful Assets and Loss Assets. What could be termed as Substandard Assets, Doubtful Assets and Loss Assets is set out in Part 4.1. The guidelines for classification of assets are laid down in Part 4.2 onwards. The further paras of this part are with regard to provisioning norms and they are set out in Part 5 onwards. The provisioning norms are aimed at fixing primary responsibility. The primary responsibility for making adequate provisions for any diminution in the value of loan assets, investment or other assets is that of the bank managements and its statutory auditors. There has to be a inspecting officer of the Reserve Bank of India whose assessment furnished to the bank will assist it and statutory auditors in taking a decision with regard to making adequate and necessary provisions in terms of prudential guidelines. The prudential norms, the classification of assets would then enable theclauses would reveal that the financial institutions and banks can acquire financial assets. This can be done by taking recourse to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the SARFAESI Act). This provides for sale of financial assets on ‘without recourse basis. This means the credit risk associated with the financial assets being transferred to the creditors. This is subject to unrealised part of the asset reverting to the seller bank/financial institution. The banks are directed to ensure that the effect of the sale of the financial assets should be such that the asset is taken off the books of the bank/financial institution and after the sale, there should not be any known liability devolving on the bank/financial institution. Thereafter, how the sale is to be conducted in a prudent manner, in accordance with the policy approved by the Board and what policy and guidelines the Board should lay down is set out in clause (b) of para 6.4. Further, clause (c) says that the banks and financial institutions should ensure that subsequent to sale of the financial assets to Securitisation Company and Reconstruction Company, they do not assume any operational, legal or any other type of risks relating to the financial assets, which are sold.The entire set of guidelines denote that this is an advise, caution and guidance provided on sale of financial assets to Securitisation Company (SC) and Reconstruction Company (RC). As provided in para 6.3, the financial assets which can be sold to the Securitisation Company and Reconstruction Company by any bank or financial institution are non-performing assets, including a non-performing bond/debenture, a Standard Asset where the asset is under consortium/multiple banking arrangements and atleast 75% by value of the asset is classified as non-performing asset in the books of other banks/financial institutions and atleast 75% by value of the banks/financial institutions who are under the consortium/multiple banking arrangements agree to the sale of the asset. Secondly, a procedure has to be followed and in the case of consortium/multiple banking arrangements, if 75% (by value) of the banks/financial institutions decide to accept the offer, the remaining banks/financial institutions will be obligated to accept the offer. However, this is preceded by an assessment of each bank/ financial institution of the value offered by the Securitisation Company/Reconstruction Company for the financial asset and decide whether to accept or reject the offer. Further, there cannot be a transfer to this Securitisation Company/ Reconstruction Company at a contingent price, whereby, in the event of shortfall in the realization by the Securitisation Company/Reconstruction Company, the banks/financial institutions would have to bear a part of the shortfall. Finally, if the auction process is used for sale of non-performing assets to Securitisation Companies/ Reconstruction Companies, that should be more transparent and complying with what is laid down in para 6.4 clause (d)(iv).Mr.Kamdar, therefore, is not correct in arguing that this circular ought to be followed and must be directed to be followed by respondent Nos.1 to 6, even if that is containing a caution, advise and guidance. It is common ground that the petitioner says that these guidelines/norms should be applied and there is no choice not to abide by it. The argument is that since more than 75% (by value) of the lenders of the petitioner have assigned all their rights, title and interest in the financial facilities granted by them to the petitioner in favour of respondent No.7 by executing assignment agreements, by virtue of the IRAC guidelines, all other lenders of the petitioner are obligated to accept the offer of respondent No.7 for assignment of their respective rights, title and interest in the financial facilities granted to the petitioner. To our mind, this understanding of the senior counsel is flawed and erroneous simply because there is an obligation only when the guidance is adhered to and all precautions are taken before the assignment arrangement for sale. Once these are guidelines and they cannot be elevated or placed at the level of a binding rule, regulation and statute, then, we cannot accept the arguments of Mr. Kamdar. Assuming that these are fulfilled, as projected by the petitioner, still the decision to be taken requires balancing and weighing of several factors. There is a risk which has to be taken and ultimately the policy must be applied on case-to-case basis. We cannot direct respondent Nos.1 to 6, who are financial institutions/banks, to agree to the demand of the petitioner. If these are policy matters and dealing with fiscal and financial issues, then, the discretion of the banks/financial institutions cannot be taken away by issuing a command or writ contrary to the expressed terms and conditions of the policy. The policy document must be read as a whole and nothing should be read, as is attempted, in isolation or out of context. In these circumstances, we do not think that the petitioner can claim the writ. In fact, in the grounds of this petition, respondent No.1 is targeted and it is stated that its actions are mala fide and arbitrary. It is seeking to recover monies from the petitioner under the original financial documents after a part of the respondent No.1s debt has been converted into equity under the SDR Scheme. Now, we cannot attribute mala fides and arbitrariness so easily and casually in financial matters to a public sector bank. That bank is the custodian of public funds. It holds them in trust for the public. It is not expected to surrender and sacrifice its interests, particularly legal rights merely because the petitioner desires that it should join in total restructuring of the debt of the petitioner or total waiver. We must bear in mind that before us is a debtor who owes thousands of crores to these financial institutions and banks and it is dictating to them to accept the proposal of settlement or restructuring of its debt. The proposal has to be evaluated and considered in the backdrop of its long term implications and consequences. If the bank adopts such a course, then, we cannot direct the bank to act contrary to the same. That would mean calling upon the bank not to act for public good and in publicsuch an accusation or allegation is easy to level, but when the nationalised bank has to also consider all pros and cons and its decision should be rational, reasonable, fair, just and in public interest, then, merely because its interpretation of the clauses of a scheme is allegedly erroneous, the writ cannot be issued as claimed. In fact, in grounds (E), (F) and (G), precise allegations made by respondent No.1 are summarised. The petitioner seeks to challenge these allegations. However, all the matters pertaining to these allegations are factual issues. The remarks of the first respondent are termed as allegations by the petitioner,but what we find is that it is an evaluation by the first respondent. Its evaluation and financial commitments may not be acceptable to the petitioner, but surely, on the version of the petitioner, we cannot issue the writ as prayed. These are seriously disputed factual issues. Therefore based on all these grounds, the petitioner cannot insist on respondent Nos.1 to 6 to agree with it. It is apparent from a reading of ground (K) that respondent Nos.1 to 6 are public sector undertakings and custodian of public funds. However, before accusing these respondents of acting unfairly, arbitrarily, the petitioner knows that the guidelines of the Reserve Bank of India on all and every possible aspects of financial management, grant of loans and advances, do not have a binding character. Ultimately, the banks have been given a free play in the joint. The decisions are discretionary in nature. The discretion cannot be directed to be exercised in a particular manner when several options and courses are open to the decision making body. It is not obliged to take only one particular decision, much less in favour of the petitioner. It is in these circumstances that we do not agree with Mr.Kamdar that everything that is placed before us is mandatory in character. In fact, we have reproduced the paragraphs of the petition which are based on the IRAC guidelines contained in circular dated July 1, 2015. There is no case outside this circular, which is pressed before us. Merely because several meetings were held and some tentative decisions were taken does not mean that there is a mandate flowing from the same. The decisions are termed as unanimous by the petitioner, but it is conceded before us that 13 lenders have assigned their respective debts to respondent No.7. However, respondent Nos.1 to 6 are not agreeable to the decisions taken at the consortium meeting by the other lenders of the petitioner. There is no question of backing out, but if the petitioner says that there is a commercial merit in assigning the debt of the petitioner in favour of respondent No.7, then, that commercial wisdom is not collective, but of the majority of the creditors. Particularly even after scaling down and granting a concession, the debt of the petitioner is enormous and computed to the extent of Rs.1758,41,96,635/-. There is another debt of the associated company and that is also enormous. When such is the magnitude of the debt, then, a cautious approach by respondent Nos.1 to 6 cannot be ipso facto termed as arbitrary, unfair and unreasonable. The petitioner will have to establish and prove that the IRAC guidelines styled as such contain a mandate. That mandate has not been adhered to by respondent Nos.1 to 6 though all conditions in relation thereto are fulfilled by the petitioner is another facet, which will have to be established and proved by the petitioner. That the decisions are taken unanimously by all lenders and, therefore, respondent Nos.1 to 6 cannot back out of the same must be proved by leading evidence. That legally admissible evidence ought to take care of all the alternate versions and placed by the petitioner itself before us. Firstly, it is said that these decisions are unanimous and thereafter it is said that the decisions are the product of collective commercial wisdom of the superior majority of the creditors of the petitioner and they have to be implemented.We do not think that the grounds raised in this petition, consistent with which Mr.Kamdar raised the arguments, enable us to issue the writ as prayed for.The grounds in the writ petition project a version of the petitioner based on which a relief in the nature of specific performance of contractual obligations is sought in this writ petition. If we make a reference to grounds (N), (O) and (P), then, it is evident that the petitioner say that it has fulfilled its part of promise or obligation and respondent Nos.1 to 6 have refused to comply with the guidelines despite the same. Now, what the reciprocal or corresponding obligations qua the dues of the lenders are and whether they are contractual or statutory in character would have to be established and proved. If these are contractual obligations, then, whether there is absolute refusal to perform the obligations or discharge the duties or that the duties and obligations allegedly attributed to the lenders have been performed only in part and not in full are matters, which would have to be established and proved by the petitioner either in substantive legal proceedings or in defence to the proceedings instituted against it by respondent No.7. To our mind, it would be highly risky and unsafe to rely on the version of the petitioner and issue the writ of mandamus as prayed.All the more, when the seventh respondent has, in a communication addressed to the petitioner, copy of which is at Exhibit ‘BB to the petition, clarified its position. It has referred to all the facts in details and then said in the recall notice that pursuant to the terms of the SDR package, the debt amounting to Rs. 35.60 Crores and Rs.271.11 Crores were converted into equity in the share capital of the petitioner and Chennai Network Infrastructure Limited (CNIL). The consortium lenders, alongwith Canara Bank, post conversion of debt into equity, are presently holding 51% shareholding. They were required to be transferred to new investor within a period of 18 months from the date of reference to the change of present management. This is an essential condition of the SDR package. That has not been fulfilled. The standstill clause available under the SDR expired on 19th March, 2018. Therefore, by the Reserve Bank of India guidelines, the petitioners accounts were classified as non-performing assets by the statutory auditors with retrospective effect from 1st July, 2011. This is on account of failure or non-compliance with the CDR and SDR packages. The company has failed to meet its repayment obligations towards the Canara Bank and committed breaches and defaults under financial documents. That is why the Canara Bank called upon the petitioner to pay the dues by its reminder dated 27th June, 2018. There is no response to the same. That is how the bank was seeking to recover a sum of Rs.540.35 Crores under the Rupees Facility as on 23rd August, 2018.We are clear in our mind after we have perused this letter that it is the first respondent, which is accusing the petitioner of breach and violation of the packages and the conditions thereof. The bank accuses the petitioner of not fulfilling its commitment or the essential conditions under the packages. This may be or may not be correct, but it is definitely a version contrary to that of the petitioner. In such circumstances, how arbitrariness, much less, mala fides, can be attributed to a public financial institution without resolution of the factual disputes, is unclear to us. In other words, this is not an undisputed factual position, but a highly disputed one. It is in these circumstances that we are disinclined to grant any relief.It may be that the seventh respondent has addressed a letter to the petitioner, copy of which is at page 322 of the paperbook, and it claims that it is entitled to recover from the borrowers or guarantors the total dues of the banks alongwith the interest at contractual rate. It makes reference to certain banks mentioned in Schedule-1. This may not be inclusive of all the debts and dues to even Canara Bank. Therefore, this communication may say that the assignment agreements are with Union Bank of India, Andhra Bank, ICICI Bank Limited, Axis Bank, Bank of Baroda, Bank of India, Dena Bank, Indian Overseas Bank, Punjab National Bank, State Bank of India, Oriental Bank of Commerce and Central Bank of India, still, the petitioner has impleaded Canara Bank, Corporation Bank, Indian Bank, Vijaya Bank, IDBI Bank and Life Insurance Corporation of India Limited, all of which are not a party to this agreement. In these circumstances, marking of the documents in favour of these entities would not suffice. All the more when we have made detailed reference to the affidavit-inreply of respondent No.1 as well.We do not think that the judgments relied upon by Mr.Kamdar have any bearing on the issue.In Dharani Sugars and Chemicals Limited Vs.Union of India and Ors.(2019) 5 SCC 480   , the issue was different. There, the Banking Regulation Act and Sections referred to in Ravindras case (supra) have been referred to and thereafter, the argument that these circulars of the Reserve Bank of India are not traceable to any statutory provisions was dealt with. In these circumstances, the arguments on constitutional validity of Section 35-AA and 35-AB have been rejected. Once again these are in the context of the challenge to these provisions after the Insolvency and Bankruptcy Code, 2016 was enacted. The Honble Supreme Court concluded its judgment on the issues by holding the circulars ultra vires. Now, these circulars, in the backdrop of which the challenge was raised, were not identical nor was the factual issue. Therefore, this judgment has no bearing on the issue before us.Similarly, the judgment delivered in the case of Innoventive Industries Limited Vs. ICICI Bank and Anr. (2018) 1 SCC 407  would also have no application as a distinct controversy was dealt with by the same.As far as the writ petition argued by Mr.Seervai is concerned, there, we find that the prayer is to direct respondent No.7 to enter into a inter-creditor agreement. That is already entered into between the petitioner and remaining domestic lenders (respondent Nos.3 to 6 and 8 to 18).Now, the mandamus that is claimed is once again on the basis of the petitioners version. Thepetitioner says, in the grounds of challenge itself, that the prudential framework issued by the second respondent (Reserve Bank of India) provides lenders with a wide array of options to implement a resolution plan for the resolution of the debts owed by the borrowers.Ultimately, it is a resolution plan. Now, whether the word shall appearing therein would denote that it is mandatory to enter into the intercreditor agreement or otherwise or that is not decisive would depend upon this framework and reading of the same in its entirety. Similarly, the disputes and which are purely factual in nature, founded on contractual obligations necessitates consideration of a contra version. That is how ground (A) of the petition is drafted. The intent of the framework is to facilitate decision on the basis of prescribed thresholds. Whether this prudential framework is better in comparison to given one and contains an absolute mandate as directed, will have to be considered in the backdrop of the case of the Canara Bank. We have referred to that case and the debt of Canara Bank owed by the petitioner. The Canara Bank may have allegedly, contrary to this framework and the alleged mandate therein, approached the NCLT, but the proceedings before the said Tribunal are pending. Now, whether that proceeding is maintainable or not and must be disposed of in the light of the petitioners assertions, is a matter entirely left for decision by the NCLT. If the NCLT has to determine and decide the matter within the time framework, then, it is not as if the NCLTs decision, if adverse to the petitioner, is unassailable. It can be assailed and challenged in the scheme of the IBC itself by filing appeals. Now, the petitioner says very clearly in ground (B) that respondent No.7 has not per se refused to implement a resolution plan, but its stand is that the petitioner has not submitted a resolution plan that is acceptable to respondent No.7. Respondent No.7 is not averse to considering the so called better plan. Now, which plan completely and totally resolves the disputes and fulfills the obligations of parties and settles the dues of respondent No.7, is not a matter which can be decided in writ jurisdiction. We cannot, by a unilateral version of the petitioner, issue the writ. Ultimately nobody and much less a public sector financial institution/bank can be compelled to accept a settlement or resolution plan of the debtor. The bank has its own limitations, restrictions and desires to abide by the norms which it terms as more prudent. In the circumstances, we do not think that the petitioners version can be accepted as sacrosanct. The petitioner here also relies upon the minutes of the joint lenders meeting. If only the Canara Bank is not joining the resolution plan, then, it cannot be compelled to join it by entering into the intercreditor agreement, all the more when it has approached the NCLT. The allegations made against the Canara Bank by the petitioner can be substantiated in the appropriate proceedings or while defending the proceedings before the NCLT or other Forums.