Team Code 3

TEAM CODE: 003
INSOLVENCY AND BANKRUPTCY MOOT COURT COMPETITION

2018
IN THE MATTER OF
ARVIND CEMENT LIMITED, CORPORATE DEBTOR
WRITTEN SUBMISSIONS ON BEHALF OF THE CONCERNED PARTIES

INSOLVENCY AND BANKRUPTCY MOOT COURT COMPETITION, 2018
TABLE OF CONTENTS
Part-I
LIST OF ABBREVIATIONS ................................................................................................ F
INDEX OF AUTHORITIES ..................................................................................................H

LIST OF CASES ....................................................................................................................... H
A. Supreme Court Cases ................................................................................................ H
B. High Court Cases...................................................................................................... H
C. NCLAT Cases ............................................................................................................. J
D. NCLT Cases ............................................................................................................... J
E. Foreign Cases ........................................................................................................... K
ARTICLES AND REPORTS…………………………………………………...…………….…L
STATUTES…………………………………………………………………..………….…..M
RULES AND REGULATIONS……………….………………………………………………...M
BOOKS……………………………………………………………………………………..M
LEXICONS……………..……………………………………………………………….…...N
STATEMENT OF FACTS .....................................................................................................O
ISSUES RAISED.....................................................................................................................Q
ANALYSIS OF ISSUES .......................................................................................................... 1
ISSUES ON BEHALF OF THE CORPORATE DEBTOR AND ITS PROMOTER
ISSUE: 1 THAT NCLT SHOULD PUT A STAY ON CIRP PROCEEDINGS. ................................ 1

1.1 THAT THE DELAY IN PAYMENT OF INTEREST WAS A RESULT OF FORCE MAJEURE. ..... 1
1.2 THAT THE INITIATION OF CIRP WILL ADVERSELY AFFECT THE FUTURE PROSPECTS OF
ACL................................................................................................................................ 1
ISSUE: 2 THAT PAYMENT MADE BY ACL TO TTCL IS NOT AN AVOIDABLE TRANSACTION... 1
ISSUE: 3 THAT THE MORTGAGE CREATED BY APL OVER ITS LAND IS NOT AN AVOIDABLE
TRANSACTION. .................................................................................................................... 2
3.1 THE TRANSACTION HAD BEEN EFFECTED IN THE ORDINARY COURSE OF BUSINESS .... 2
3.2 THERE IS NO DOMINANT MOTIVE ON THE PART OF ACL. ........................................... 3
ISSUE:4 THAT THE APPLICATION FOR ENFORCEMENT OF PERSONAL GUARANTEE AGAINST

MR. ARVIND KUMAR IS NOT SUSTAINABLE. ........................................................................ 3
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES A

ISSUES ON BEHALF OF INSOLVENCY PROFESSIONALS
ISSUE:1 THAT RP JUSTIFIED IN REJECTING THE CLAIM OF GKCL AS FINANCIAL CREDITOR

........................................................................................................................................... 4
1.1 THAT THE MAJOR REQUIREMENTS OF FINANCIAL DEBT STAND DISPUTED .................. 4
1.2 THAT THERE IS NO PARITY BETWEEN THE AMOUNT OF CLAIM AND ACTUAL DEFAULT
........................................................................................................................................ 5
ISSUE:2 THAT PAYMENT MADE TO TTCL OUT OF INTERIM FINANCE IS NOT CONTRARY TO
LAW. .................................................................................................................................... 5
ISSUE:3 THAT THE APPLICATION FOR RECOGNITION OF FOREIGN PROCEEDING SHOULD

NOT BE ACCEPTED .............................................................................................................. 6
ISSUE 4: THAT THE RP IS JUSTIFIED IN REJECTING THE CLAIM OF APL ........................... 8
ISSUE 5: THAT EXCESS PAYMENT MADE TO APL MUST BE AVOIDED .................................. 8

5.1 THERE LIES INSTANCE OF AVOIDABLE TRANSACTION ............................................... 8
5.2 SET-OFF CANNOT BE SUSTAINED IN PURSUANCE OF AN AVOIDABLE TRANSACTION .. 9
ISSUE 6: THAT RP IS JUSTIFIED IN REJECTING THE REVISED RESOLUTION PLAN ............. 9
ISSUES ON BEHALF OF OPERATIONAL CREDITORS
ISSUE:1 THAT THE CLAIM OF GKCL AS A FINANCIAL CREDITOR SHOULD BE ACCEPTED10

1.1 THAT THE MAJOR REQUIREMENTS OF FINANCIAL DEBT STAND UNDISPUTED ........... 10
1.2IN ARGUENDO, THE PURCHASE AGREEMENT IS AKIN TO A FINANCIAL LEASE
AGREEMENT .................................................................................................................. 11
ISSUES ON BEHALF OF FINANCIAL CREDITORS/COC
ISSUE:1 THAT PAYMENT MADE TO TTCL FROM INTERIM FINANCE WAS CONTRARY TO LAW
......................................................................................................................................... 11
ISSUE: 2 THAT PAYMENT MADE BY ACL TO TTCL BEING FRAUDENTLY INTENDED IS AN

AVOIDABLE TRANSACTION. .............................................................................................. 12
2.1 DIRECTORS WERE AWARE ABOUT THE TWILIGHT ZONE ........................................... 13
2.2TRANSACTION RESULTED IN LOSS TO CREDITORS ..................................................... 13
ISSUE: 3 THAT PERSONAL GUARANTEE SHOULD BE ENFORCED AGAINST MR. ARVIND

KUMAR. ............................................................................................................................ 13
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES B

ISSUES ON BEHALF OF OTHER PARTIES
ISSUE: 1 THAT RECOGNITION & COOPERATION MUST BE PROVIDED IN RESPECT TO THE

FOREIGN PROCEEDINGS ................................................................................................... 15
1.1 CENTRE OF MAIN INTEREST PERTAINING TO ALSL LIES IN USA ............................. 15
1.2 THE MODEL LAW AIDS TO COOPERATION BETWEEN TWO STATES. .......................... 16
ISSUE: 2 THAT CLAIM OF APL BEING AN ESSENTIAL SUPPLIER MUST SUBSIST ................ 17
ISSUE: 3 THAT EXCESS PAYMENT MADE TO APL SHOULD BE ALLOWED TO SET-OFF. ...... 17
ISSUE: 4 THAT THE MORTGAGE CREATED BY APL OVER ITS LAND SHOULD BE AVOIDED.
......................................................................................................................................... 18
ISSUE: 5 THAT REVISED PLAN PROPOSED BY JMCL SHOULD BE ACCEPTED. ................... 19
ISSUE: 6 THAT RP OF APL BEING A NECESSARY PARTY SHOULD BE IMPLEADED ............ 20
PRAYER .................................................................................................................................. S
ANNEXURE/FORMS/REPORTS…………...………………………………………….I-CI
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES C

Part-II
ANNEXURE/FORMS/REPORTS
MEMO OF THE PARTIES .................................................................................................... I
PART – I FILING OF CIRP APPLICATION ....................................................................II
APPLICATION BY FINANCIAL CREDITOR TO INITIATE CORPORATE

INSOLVENCY RESOLUTION PROCESS UNDER THE CODE ...................................... II
Annexure in support of the Application for Initiating CIRP ...........................................VII
Loan Agreement of 1994 ........................................................................................... VII
Authorization Letter to people bank ........................................................................... IX
Written Communication By Proposed Interim Resolution Professional ................... XII
PART II - ACCEPTANCE OF INSOLVENCY PROCEEDING/PROCEDURE

CONDUCTED BY IRP/RP ............................................................................................... XIV
PUBLIC ANNOUNCEMENT ..........................................................................................XIV

PROOF OF CLAIM BY FINANCIAL CREDITOR.........................................................XVI
1 - Claim by People’s Bank (FORM C) ........................................................................ XVI
Annexure in support of Proof of Claim of People Bank ...........................................XIX
2 – Claims by Bank of North India (FORM C) ............................................................. XXI
Annexure in support of Proof of Claim of Bank of North India ............................ XXIV
3 – Claim by PSP Bank (FORM C) ............................................................................ XXVI
Annexure in support of Proof of Claim of PSP Bank ............................................ XXIX
4 – Claim by SCB Bank (FORM C) ............................................................................ XXXI
Annexure in support of Proof of Claim of SCB Bank ........................................ XXXIV
5 – Claim by RST Bank (FORM C)...........................................................................XXXVI
Annexure in support of Proof of Claim of RST Bank ...................................... XXXVII
PROOF OF CLAIM BY OPERATIONAL CREDITORS EXCEPT WORKMEN AND

EMPLOYEES ................................................................................................................ XLIV
1 – Claim by GKCL (FORM B) .................................................................................. XLIV
Annexure in support of Proof of Claim of GKCL ................................................ XLVII
2 – GKL and Other Dealers (FORM B)...................................................................... XLIX
3 – Imperium Carriers Ltd, FORM B ............................................................................. LII
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES D

4 – Raw Material Suppliers (FORM B) .......................................................................... LV

5– XYL Securities Agency (FORM B) ......................................................................... LVIII
6– T&T Construction Ltd (FORM B)............................................................................. LXI
7 – Electricity Discom in Rajasthan (FORM B) ......................................................... LXIV
PROOF OF CLAIM BY A WORKMAN OR AN EMPLOYEE (FORM D) ................ LXVII

LIST OF CREDITOR PREPARED BY THE IRP ......................................................... LXIX
REPORT OF MINUTES OF COC MEETING HELD ON 27.04.2018 .......................... LXX
REPORT OF 7TH MINUTES OF COC MEETING HELD ON 27.08.2018 ................ LXXIII
PART III - APPLICATION FILED BEFORE THE TRIBUNAL ON BEHALF OF THE

CONCERNED PARTY DURING CIRP .................................................................... LXXIV
1 – APPLICATION BY GKCL ......................................................................................... LXXIV
Document Annexed for the Support of the Application of GKCL ............................. LXXVI
2 – APPLICATION OF RST BANK FOR AVOIDANCE OF INTERIM FINANCE ....................LXXVIII
3 – APPLICATION OF RST BANK FOR AVOIDANCE OF 20 LAKH RUPEES TO TTCL .........LXXX
4 – APPLICATION OF RST BANK FOR ENFORCEMENT OF PERSONAL GUARANTEE ...... LXXXII
Document Annexed for the Support of the Application ......................................... LXXXIV
5 – APPLICATION OF RP OF ACL FOR AVOIDANCE OF 20 CRORE TO APL ................. LXXXVI
6 – APPLICATION OF APL FOR CLAIMING ITSELF AS OPERATION CREDITOR ........... LXXXVIII
Document Annexed for the Support of the Application of APL ............................. LXXXIX
7 – APPLICATION OF APL FOR AVOIDANCE OF 100 ACRES MORTGAGE LAND .................. XCI
Document Annexed for the Support of the Application .............................................. XCIV
8 –APPLICATION FOR RECOGNIZING THE FOREIGN PROCEEDINGS .................................. XCVI
9 – APPLICATION OF APL FOR IMPLEADMENT.............................................................. XCVIII
10 – APPLICATION OF JMCL FOR ACCEPTANCE OF RESOLUTION PLAN ................................. C
11 – APPLICATION OF RP FOR EXTENSION OF CIRP PROCESS ............................................ CII
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES E

LIST OF ABBREVIATIONS
ABBREVIATION EXPANSION
§ Section
¶ Paragraph
& And
ACL Arvind Cement Limited
AIR All India Reporter
ALSL AQUA Logistics and Shipping Limited
Anr. Another
APL Arvind Power Limited
AS Accounting Standard
AT Appellate Tribunal
BLRC Banking Law Reform Committee
BOD Board of Directors
CA Court of Appeal
C.P. Company Petition
CIRP Corporate Insolvency Resolution Process
CoC Committee of Creditors
ECR European Court Reports
Ed. Editor
EWCA England and Wales Court of Appeal
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES F

GKCL GK Constructions Limited
HC High Court
Hon’ble Honourable
IAS Indian Accounting Standard
IBBI Insolvency and bankruptcy board of India
IBC Insolvency and Bankruptcy Code
IRP Interim Resolution Professional
JMCL JM Cements Limited
Ltd. Limited
NCLAT National Company Law Appellate Tribunal
NCLT National Company Law Tribunal
No. Number
OL Official Liquidator
Ors. Others
Reg. Regulation
RP Resolution Professional
SC Supreme Court
SPV Special Purpose Vehicle
TTCL T&T Constructions Limited
UNCITRAL United Nations Commission on International Trade Law
UOI Union of India
US United States
v Versus
WLR Weekly Law Report
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES G

INDEX OF AUTHORITIES
~LIST OF CASES~
A. Supreme Court Cases
1. Assn of Leasing & Financial Services Co v Union of India (2011) 2 SCC 352 (SC) .... 11
2. Bank of Bihar v Damodar Prasad (1969) SCR 297 ....................................................... 15
3. Industrial Investment Bank of India Ltd v Bishwanath Jhunjhunwala (2009) 9 SCC 478
(SC)................................................................................................................................. 15
4. N Parthasarthy v Controller Capital Issues (1991) 2 SCR 329 (SC). ........................... 18
5. OL High Court of Karnataka v Smt V Lakshmikutty [1981] 51 Comp Case 566 (SC) .. 18
6. Ramesh Chandra Mal v Municipal Corpn of Greater Bombay (1992) 2 SCC 524 (SC).
........................................................................................................................................ 20
7. State Bank of India v V Ramakrishnan [2018] 96 taxmann.com 271 (SC) .................... 14
8. Vodafone International holding BV v Union of India [2012] 17 taxmann.com 202 (SC)

........................................................................................................................................ 15
B. High Court Cases

1. Abdul Hamid Sahib & Ors v Rahmat Br (1964) SCC Online Mad 316. ........................ 11
2. American Express Bank Ltd v Core Health Care Ltd (1999) 96 Comp Cas 841 (GUJ HC).
.......................................................................................................................................... 2
3. Asea Brown Baveri Ltd v Industrial Finance Corporation of India Appeal (civil) 3574 of
1998 ................................................................................................................................ 11
4. Bank of Baroda in re vs. [2018] 93 taxmann.com 331 (NCLT - Kolkata)..................... 20
5. Bank of Maharashtra v OL Navjivan Trading Finance Pvt Ltd [1999] 96 CompCas 234
(GUJ HC).......................................................................................................................... 4
6. Bikkina Gopalkrishna Rao v Seavalley Resorts Pvt Ltd (2001) 104 Comp Cas 267 (AP
HC). .................................................................................................................................. 2
7. Daulat Mokanlal Luthria v Solitaire Hotels Pvt Ltd (1993) 76 Comp Cas 215 (BOM HC)
.......................................................................................................................................... 2
8. Edelweiss Asset Recons Co Ltd v Synergies Dooray Automotive Ltd [2017] 85

taxmann.com 136 (NCLT - Hyd). .................................................................................... 9
9. Globe Forex & Travels Ltd v Siddharth Sett [2015] 53 taxmann.com 456 (Cal HC). ... 10
10. Hind Iran bank Ltd v Raizada Jagan Nath Bali (1959) 29 ComCas 418 (PUN HC) ...... 4
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES H

11. Indian Associates v Shivendra Bahadur Singh (2003) SCC OnLine Del 180. .............. 20
12. M/s Sicom Investments & Finance Ltd v Rajesh Kumar Drolia & Anr (2017) SCC Online
Bom 9725 (Bom HC). .................................................................................................... 14
13. Madho Sah v Sitaram (1961) SCC OnLine Pat 101 (Pat HC). ...................................... 15
14. Motorola India Ltd v DSS Mobile Communications Ltd [2006] 65 SCL 107 (Delhi
HC)…………………………………………………………………………………….20
15. Monrak Enterprises v Kishan Tulpule (1992) 74 ComCas 89 (Bom HC). ...................... 3
16. Morpen Finance Ltd v RBI (2004) 4 CompLJ 357 (Delhi HC) ....................................... 3
17. OL Kerala High Court v Victory Hire Purchasing Co Pvt Ltd [1982] 52 Comp Cas 88
(Ker HC) ......................................................................................................................... 20
18. OL of Piramal Financial Services Ltd v RBI [2004] 51 SCL 691 (GUJ HC). ............ 2,20
19. OL of Piramal Financial Services v Decimal Systems (2009) 91 SCL 31 (GUJ HC). .. 20
20. OL of Trimline Health & Resort Ltd v GSFC & 4 [2009] 92 SCL 323 (GUJ HC). ......... 2
21. OL v Ashok Kumar Dalmia & Ors [1999] 98 Comp Cas 269 (Raj HC) ........................ 20
22. OL v MD State Financial Corp (2000) 26 SCL 303 (AP HC) ......................................... 3
23. OL v Ram Swarup (1997) 2 Comp LJ 221 (Allahabad HC) .......................................... 20
24. OL Victor Chit Fund Pvt Ltd v Kanhiya Lal & Ors (1972) 42 Comp cas. 396 (Delhi HC).
.......................................................................................................................................... 4
25. Oshi Foods Ltd v State Bank of India (1997) SCC OnLine MP 160 ............................... 4
26. Ramdeo Ranglal v Ghooronia Tea Co Pvt Ltd (2005) 126 Comp Cas 193 (Gauhati HC).
.......................................................................................................................................... 2
27. Re Company A (1990) BCC 526 (HC) ........................................................................... 20
28. Re Concast Exim Ltd [2015] 64 taxmann.com 140 (Cal HC). ....................................... 10
29. Re Parasrampuria Trading & Finance Ltd [2006] 70 SCL 342 (All HC) .................... 20
30. Re Peerdan Juharmal Bank Ltd [1954] 24 COMP CASE 41 (Mad HC) ....................... 20
31. Re Popular Bank Ltd (In Liquidation) [1969] 39 Comp Case 685 (Ker HC). ............... 20
32. Re Prudential Capital Markets Ltd (In Liquidation) (2008) 84 SCL 239 (Cal HC) ........ 3
33. Re Trustee Ex Parte (1924) (2) Ch D 515 ...................................................................... 20
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES I

34. S. Krishnan v. Rathinavel Naicker & ors. (2006) SCC OnLine Mad 749. .................... 20
35. Sanjeev Shriya v State Bank of India & others [2017] 87 taxmann.com 309 (Allahabad
HC) ................................................................................................................................... 4
36. Santilata v Saraju Bala Devi (1955) SCC OnLine Cal 272 ........................................... 11
37. State of Madras v OKM Zakina Bivi & Ors (1957) SCC OnLine Mad 21 .................... 11
38. Subankhan v Lalkhan AIR 1947 Nag. 643. .................................................................... 15
39. Sunder Lal Jain v Sandeep Paper Mills Pvt Ltd [1986] 60 Comp Case 77 (P&H HC) . 20
40. Suresh Narain v Akhauri (1957) SCC OnLine Pat 7 (Pat HC) ...................................... 15
41. Terai Tea Co Pvt Ltd v Kumkum Mittal (1993) SCC OnLine Cal 270. ......................... 20
42. VGP Finances Ltd v Official Liquidator [2018] 89 taxmann.com 209 (Mad HC). ......... 2
C. NCLAT Cases
1. BCL Homes Ltd v Canara Banks [2018] 93 taxmann.com 279 (NCL-AT). ............... 8,12
2. Nikhil Mehta and Sons v Amr Infrastructure Ltd [2017] 84 taxmann.com 163 (NCL-
AT) ................................................................................................................................. 10
3. PEC Ltd v Sree Ramakrishna Alloys Ltd [2018] 92 taxmann.com 21 (NCLAT). ........... 1
4. Schweitzer Systemtek India v Phoenix ARC Pvt Ltd (2018) 91 taxmann.com 139 (NCL-
AT) ................................................................................................................................. 14
D. NCLT Cases
1. Col Vinod Awasthy v AMR Infrastructures Ltd [2017] 80 taxmann.com 268 (NCLT -
New Delhi). ................................................................................................................ 4, 17
2. ICICI Bank Ltd v Innoventive Industries Ltd [2017] 88 taxmann.com 230 (NCLT –
Mum). ............................................................................................................................. 10
3. IDBI Bank Ltd v Jaypee Infratech Ltd [2018] 93 taxmann.com 308 (NCLT - Allahabad).
.......................................................................................................................................... 2
4. M/s VDS Plastics Pvt Ltd v M/s Pal Mohan Electronics Pvt Ltd (CP No. (IB)-
37(ND)/2017) (NCLT - New Delhi). ............................................................................... 5
5. Punjab National Bank v Vindhya Vasini Industries Ltd CP (IB0-1170(MB)/2017 (NCLT

Mumbai). ........................................................................................................................ 14
6. Ravindra Gopal v Tattva & Mittal Lifespaces Pvt Ltd [2018] 91 taxmann.com 378
(NCLT - Mum) ............................................................................................................... 18
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES J

7. RDC Concrete India Pvt Ltd v Bengal Unitech Universal Infrastructure Pvt Ltd [2018]
89 taxmann.com 405 [NCLT-Delhi]. ............................................................................. 18
8. Re Gupta Energy Pvt Ltd [2018] 93 taxmann.com 391 (NCLT - Mum). ........................ 9
9. State Bank of India v Bhushan Steel Ltd [2018] 93 taxmann.com 307 (NCLT- New
Delhi). ............................................................................................................................. 10
E. Foreign Cases
1. Case C-341/04 Re Eurofood IFC Ltd [2006] ECR I-3813 .......................................... 7,16
2. Case C-396/09 Interedil Srl v Fallimento Interedil Srl [2011] ECR I-9915 .................... 8
3. Downs Distributing Co Pry Ltd v Associated Blue Star Stores Pry Ltd [1948] HCA 14 3
4. Gainsford v Tannenbaum (2012) 293 ALR 699............................................................. 16
5. Lister v Hooson [1908] 1 KB (CA). ............................................................................... 10
6. Otte v United States 419 US 43 (1974). ......................................................................... 13
7. Powdrill v Watson (1995) 2 AC 394 (HL) ..................................................................... 13
8. Re Angiotech Pharmaceuticals Ltd (2011) 76 CBR (5th) 317 ......................................... 7
9. Re Beacon Leisure Ltd (1992) BCLC 565. ...................................................................... 3
10. Re Bear Stearns High-Grade Structured Credit Strategies Master Fund Ltd 389 BR 325
(SDNY 2008).............................................................................................................. 8, 17
11. Re Betcorp Ltd (in liquidation) 400 B.R. 266 (Bankr D Nev 2009). ............................. 16
12. Re Bevill Bresler & Schulman Asset Mgmt. Corp 896 F 2d 54, 59 (3d Cir 1990) (CA) 19
13. Re Club Development & Management Corp 27 BR 610 (1982). ................................... 12
14. Re Continental Assurance Co (2001) BPIR 733 ............................................................ 13
15. Re Dylex Ltd (1995) CanLII 7370. ................................................................................... 6
16. Re Fairfield Sentry Ltd 714 F 3d 127 (2nd Cir 2013) (CA) ............................................ 16
17. Re Fairview Industries Ltd 1991 CanLII 4287 (NS SC). ................................................. 6
18. Re Grand Chevrolet Inc 25 F 3d 728 (9th Cir. 1994) (CA). ............................................ 3
19. Re Healthcentral.com 504 F 3d 775, 790 (9th Cir. 2007) (CA)....................................... 3
20. Re Lightsquared LP (2012) ONSC 2994........................................................................ 16
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES K

21. Re M Kushler Ltd (1943) 13 Comp Case 219 (CA) ......................................................... 3
22. Re Massachusetts Elephant & Castle Group Inc (2011) 81 CBR (5th) 102 .................... 7
23. Re Northsea Base Investment ltd & Ors [2015] EWHC 121 (Ch) ............................. 8, 16
24. Re OPM Leasing Services Inc 23 BR 104 (1982) .......................................................... 13
25. Re Patch Graphics Inc 58 BR 743 (1986)...................................................................... 12
26. Re Probe Resources Ltd (2011) 79 CBR (5th) 148 ........................................................ 17
27. Re Stanford International Bank Ltd & Ors [2010] EWCA Civ 137 .............................. 16
28. Re Washington Diamond Mining Co [1893] 3 Ch 95 (CA) ........................................... 10
29. Tucker v Aero Inventory (UK) Ltd [2009] ONSC 63138 ................................................. 8
30. Woods v City Nat Bank & Trust Co 312 US 262 (1941) ................................................ 13
~ARTICLES & REPORTS~
1. Akpareva Wendy Aruoriwo, ‘Business funding in corporate rescue: the UK

perspective’ (DPhil thesis, Nottingham Trent University 2014). .................................. 5
2. Gerard McCormack, ‘Corporate restructuring law - a second chance for Europe?’

(2017) EL Rev 4. .......................................................................................................... 11
3. Insolvency and Bankruptcy Board of India (Disciplinary Committee) Order 2018,

IBBI/DC/07/2018 ........................................................................................................... 8
4. Jennifer Payne & Janis Sarra, Tripping the Light Fantastic: A comparative analysis of
the European Commission’s proposals for new and interim financing of insolvent
businesses (2017) ........................................................................................................... 5
5. John C. McCoid, II, ‘Set-off: Why Bankruptcy Priority?’ (1989) Vol 75 Virginia Law
Review 15 ...................................................................................................................... 9
6. Neil Hannan, Cross Border Insolvency: The Enactment and Interpretation of the
UNCITRAL Model Law (Springer Nature Singapore 2017) 119 ................................. 16
7. Patrick O'Callaghan, ‘Set-Off on Insolvency’ (1998) Commercial Law Practitioner ... 9
8. Report of Bankruptcy Law Reform Committee, Ministry of Finance, Government of

India (November 2015). ................................................................................................. 4
9. Shishir Mehta & Ors, ‘Restructuring and insolvency in India: overview’ (2017) Global
Guide Restructuring on Insolvency in India. ................................................................. 9
10. United Nation Commission on International Law, UNCITRAL Model Law on Cross-
Border Insolvency: The Judicial Perspective’ (The Judicial Perspective UN 2014)... 15
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES L

~STATUTES~
1. Companies Act, 2013 [Act 18 of 2013].  
2. The Insolvency & Bankruptcy Code, 2016 [Act 31 of 2016].  
3. UNCITRAL Model Law on Cross-Border Insolvency, 1997.   
4. The Transfer of Property Act [Act 4 of 1882].
5. Indian Contract Act [Act 9 of 1872].
6. The Code of Civil Procedure [Act 5 of 1908].
. ~RULES AND REGULATIONS~  
1. Accounting Standard (AS) 18.  
2. Companies (Acceptance of Deposits) Rules, 2014.  
3. Indian Accounting Standard (Ind AS) 24.  
4. Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.  
5. Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations,

2016.
6. Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for

Corporate Persons) Regulations, 2016.
~BOOKS~  
1. A Ramiya, Guide to the Companies Act 2013, vol 3 (18th edn, Lexis Nexis 2015).
2. CR Datta, Company Law, vol 3 (7th edn, Lexis Nexis 2017).
3. Guide to Insolvency and Bankruptcy Code 2016 (Taxmann’s 2018).
4. Sir D F Mulla, The Law of Insolvency Law in India (Sathaya Narayan ed, 5th edn,
LexisNexis 2013).
5. Sir Dinshaw Fardunji Mulla, The Code of Civil Procedure, vol 2 (BM Prasad and SK
Sarvaria ed, 17th edn, Lexis Nexis 2007).
6. Sumant Batra, Corporate Insolvency Law and Practice (EBC 2017) 306, 311.
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES M

7. United Nation Commission on International Trade Law, General Assembly,

Legislative Guide on Insolvency Law’ (UNCITRAL Legislative Guide) (UN
Publication Sales No E05.V.10 205).
8. Vanessa Finch and David Milman, Corporate Insolvency Law: Perspectives and
Principals (3rd edn, Cambridge University Press 2017).
9. Gerard McCormack, Corporate rescues- Anglo American perpective (Edward Elgar

Ltd 2008).
10. Susan Block-Lieb Latham & Ors, Post-Commencement Finance Excerpts from Draft
Uncitral Legislative Guide on Insolvency Law International Insolvency Institute
(2004).
11. United Nation Commission on International Trade Law, UNCITRAL Model Law on
Cross-Border Insolvency with Guide to Enactment and Interpretation (UN
Publication Sales No. E.14.V.2 2014).
12. United Nation Commission on International Law, UNCITRAL Model Law on Cross-
Border Insolvency: The Judicial Perspective (The Judicial Perspective) (UN 2014).
13. Justice GP Singh, Principles of Statutory Interpretation (11th edn, Wadhwa and
Company 2008).
~LEXICONS~
 
1. Bryan A. Garner (ed), Black’s Law Dictionary (9th edn, Thomson West 2009).
2. P Ramanatha Aiyar’s, The Law Lexicon (Shakil Ahmad Khan ed, 3rd edn, Lexis
Nexis 2012).
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES N

STATEMENT OF FACTS
~BACKGROUND~
Arvind Cement Limited (ACL) established in the year 1993 is the largest cement
manufacturing unit in India. ACL’s registered office is in Hyderabad and corporate offices are
located in Delhi & Mumbai respectively. Though ACL had a number of dealers, the biggest
dealer is GK Limited with a share of 35% of ACL’s sales in the last financial year.
~FINANCIAL ASSISTANCE TO ACL~
ACL sought financial assistance amounting to INR 2,000 crores from a consortium headed by
People’s Bank on 12.12.1994 and created securities by way of hypothecation of property. First
charge was created on the land & building of ACL in Rajasthan and second on the
manufacturing plant & machinery. In 2005, ACL also obtained working capital facility of INR
200 crores from RST Bank and created first charge on its plant & machinery at the Rajasthan
unit. Subsequently, Mr. Arvind Kumar also gave a personal guarantee.
~APPLICATION TO INITIATE CIRP~
In March 2017, ACL started facing issues with the supply of raw materials. In September 2017,
ACL proceeded to set up a plant in Karnataka, however, in February 2018, Court directed the
Central Government to issue mining licenses through a fresh process of competitive bidding.
This came as a severe blow to ACL as it had already engaged T&T Constructions Limited
(TTCL) to build the basic infrastructure for the plant in Karnataka but due to uncertainty over
payments for its service, TTCL had done only minimal off-site work so far and was awaiting
an assurance of future payment. In March 2018, ACL had INR 20 lakhs left in one of its bank
accounts, it therefore chose to default to banks and instead paid the money to TTCL.
Consequently, People’s Bank, filed an application before the Adjudicating Authority for
initiating CIRP against ACL. The Adjudicating Authority admitted the application and
appointed Ms. Pooja as Interim Resolution Professional (IRP) on 30.03.2018.
~APPLICATION BY GKCL~
The 85 storage facilities owned by ACL all over India were built by GKL’s group Company,
GK Constructions Limited (GKCL) as per the agreement dated 05.07.2010. GKCL were to be
paid its consideration, amounting to INR 500 crore, in instalments along with interest over a
period of 10 years hence on invitation of claims by RP, GKCL submitted its claim as a
Financial Creditor where RP rejected the same stating that it is not a Financial Creditor. GKCL
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES O

filed an application before the NCLT, contesting the decision of RP to reject its claim.
~APPLICATION BY RST BANK~
In the first CoC meeting of ACL, RP proposed to raise an interim finance of INR 5 crores. RST
Bank contested that RP’s proposal for interim finance, to the extent that payment was proposed
to be made to TTCL, RST Bank filed an application before the Adjudicating Authority to
prevent the RP from making any payment to TTCL and also alleged that the payment of INR
20 lakhs to TTCL is an avoidable transaction. RST bank also filed an application before the
Adjudicating Authority to enforce personal guarantee against Mr. Arvind Kumar.
~APPLICATION BY FOREIGN REPRESENTATIVE~
In 2007, ACL set up a fully-owned subsidiary, Aqua Logistics and Shipping Limited (ALSL)
which during 2015 and 2016, provided loans of USD 100 million to ACL. Citi Fin filed an
involuntary bankruptcy petition while Mr. Kelvin Murray (interim trustee) applied as a foreign
representative to the NCLT in India for recognition of the foreign proceedings and cooperation
in relation to the amount of USD 100 million loaned by ALSL to ACL.
~APPLICATION BY RP OF ACL AND APL ~
In 2003, Arvind Power Limited (APL), a Special Purpose Vehicle (SPV) was constituted by
ACL. Subsequently, in 2006, ACL & APL entered into Power Purchase Agreements (PPAs).
Meanwhile, the CIRP of APL also commenced and Mr. Mahesh (IRP of APL) submitted a
claim for 95 crores to the RP of ACL. This claim was rejected by the RP where it filed an
application for avoidance of certain transactions that led to payment of excess amount of INR
20 crores to APL which was further opposed by APL. In September 2017, when ACL expanded
its credit facilities, APL decided to mortgage 100 acres of land. The RP also filed an application
for release of land of APL. They also filed an application for impleadment in the suit filed by
RP of APL of ACL for approval of Resolution Plan.
~APPLICATION BY JMCL~
RP of ACL invited Resolution Plans. The deadline for submission of plan was 15.10.2018
where Resolution Plan of Rambo Cements Limited (RCL) emerged as the plan with the highest
score and JM Cements Limited (JMCL) came second on 19.10.2018. JMCL submitted the
revised Resolution Plan which was rejected by RP. Aggrieved by this, JMCL filed an
application to the Adjudicating Authority to have its Resolution Plan accepted by the RP of
ACL.
The Adjudicating Authority finally listed all applications arising in this matter, including the
th
applications filed by RP of APL, for hearing on 16 November 2018.
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES P

ISSUES RAISED
ARVIND CEMENT LIMITED
Issue:1 Whether NCLT should put a stay on CIRP Proceedings?
Issue:2 Whether payment made by ACL to TTCL is an avoidable transaction?
Issue:3 Whether Mortgage created by APL over its land is an Avoidable Transaction?
MR. ARVIND KUMAR (Promoter)
Issue:4 Whether application for enforcement of personal guarantee against Mr. Arvind Kumar
is sustainable?
ISSUES ON BEHALF OF INSOLVENCY PROFESSIONALS (IRP/RP)
MISS POOJA PRAKASH
Issue:1 Whether RP justified in rejecting the claim of GKCL as Financial Creditor?
Issue:2 Whether payment made to TTCL out of Interim Finance is contrary to law?
Issue:3 Whether Application for Recognition of Foreign Proceedings is maintainable?
Issue:4 Whether RP is justified in rejecting the revised Resolution Plan?
Issue:5 Whether RP is justified in rejecting the claim of APL?
Issue:6 Whether excess payment made to APL is an avoidable transaction?
ISSUES ON BEHALF OF THE FINANCIAL CREDITORS
GK CONSTRUCTIONS LIMITED
Issue:1 Whether the claim of GKCL as a Financial Creditor is sustainable?
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES Q

ISSUES ON BEHALF OF OPERATIONAL CREDITORS
RST BANK
Issue:1 Whether payment made to TTCL from interim finance was contrary to law?
Issue:2 Whether payment made by ACL to TTCL being fraudulently intended is an Avoidable
Transaction?
Issue:3 Whether Personal guarantee should be invoked against Mr. Arvind Kumar?
MR. KELVIN MURRAY (FOREIGN REPRESENTATIVE)
Issue:1 Whether Recognition & Cooperation should be provided in respect to the Foreign
Proceedings?
ARVIND POWER LIMITED
Issue:2 Whether claim of APL as an Operational Creditor is sustainable?
Issue:3 Whether excess payment made to APL should be allowed to set-off?
MR. MAHESH KUMAR (RP OF APL)
Issue:4 Whether Mortgage created by APL over its land is avoidable?
Issue:5 Whether RP of APL should be impleaded in the proceedings?
JM CEMENTS LIMITED (RESOLUTION APPLICANT)
Issue:6 Whether revised plan proposed by JMCL should be accepted.
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES R

ANALYSIS OF ISSUES
ISSUE: 1 THAT NCLT SHOULD PUT A STAY ON CIRP PROCEEDINGS.
[¶ 01] It is humbly submitted that the application filed under §7[Refer to p. II-VII under part
III Enclosures] of the Insolvency and Bankruptcy Code, 2016 should not be accepted. This will
be further substantiated on the following grounds.
1.1 THAT THE DELAY IN PAYMENT OF INTEREST WAS A RESULT OF FORCE MAJEURE.
[¶ 02] It is submitted that ACL had been servicing its debts regularly but unfortunately faced
some issues regarding supply.1 Hence, there was no unjustifiable delay in the payments. The
delay in payment made by ACL was due to certain unforeseen circumstances which had
occurred due to hardship and not due to commercial insolvency of the Company.2
1.2 THAT THE INITIATION OF CIRP WILL ADVERSELY AFFECT THE FUTURE PROSPECTS OF ACL.
[¶ 03] It is pertinent to note that ACL’s manufacturing capacity is the highest in India3, thereby
making it a growth-oriented Company.4 Therefore, it is clear that the interest of a large number
of employees could not be obliterated only to satisfy the claims of certain creditors.5 Hence, in
order to protect the interest of employees & workmen, the CIRP should not be initiated.6
ISSUE: 2 THAT PAYMENT MADE BY ACL TO TTCL IS NOT AN AVOIDABLE TRANSACTION.
[¶ 04] It is humbly submitted that the transaction of 20 lakhs could not be avoided as it was
done in good faith and in ordinary course of business.7 Although, the burden of proof lies on
the Applicant to show that the transaction in question was neither bona fide nor it was for a
1
Moot Proposition, Pg 4.
2
Daulat Mokanlal Luthria v Solitaire Hotels Pvt Ltd (1993) 76 Comp Cas 215 (BOM HC); Bikkina Gopalkrishna
Rao v Seavalley Resorts Pvt Ltd (2001) 104 Comp Cas 267 (AP HC).
3
4
American Express Bank Ltd v Core Health Care Ltd (1999) 96 Comp Cas 841 (GUJ HC).
5
Ramdeo Ranglal v Ghooronia Tea Co Pvt Ltd (2005) 126 Comp Cas 193 (Gauhati HC).
6
PEC Ltd v Sree Ramakrishna Alloys Ltd [2018] 92 taxmann.com 21 (NCLAT).
7
IDBI Bank Ltd v Jaypee Infratech Ltd [2018] 93 taxmann.com 308 ((NCLT - Allahabad).
WRITTEN SUBMISSIONS ON BEHALF OF CORPORATE DEBTOR 1

valuable consideration8, mere preference is not sufficient for drawing an inference that the
preference is fraudulent.9 In case, the transaction lies in the interest of the Company and its
creditors, the transaction is considered bona fide.10 Subsequently, payment made for goods or
services that are regularly delivered are not considered preferential, even if made within
proximity to the commencement of insolvency proceedings.11
[¶ 05] In the present case, TTCL having its operations in Karnataka, the payment made for
services had been regularly delivered12, therefore, the transaction cannot be called preferential.
ISSUE: 3 THAT THE MORTGAGE CREATED BY APL OVER ITS LAND IS NOT AN AVOIDABLE
TRANSACTION.
[¶ 06] It is humbly submitted that the application filed by RP of APL is not maintainable [Refer
to p. XC under part III Enclosures] as the said transaction cannot be preferential or
undervalued. This will be further substantiated as follows.
3.1 THE TRANSACTION HAD BEEN EFFECTED IN THE ORDINARY COURSE OF BUSINESS
[¶ 07] It is submitted that to define “ordinary course of business”, focus must be placed on
prior conduct of the parties and their professional relationship.13 The transaction must also fall
into the undistinguished common flow of business.14 In the instant case, ACL gave 100 acres
of land by way of capital contribution & provided the much-needed corporate guarantee to
APL.15 Similarly, when ACL was in need, APL did the same by way of creating mortgage in
favour of ACL, thereby effecting the ordinary course of its operations.
8
OL of Trimline Health & Resort Ltd v GSFC & 4 [2009] 92 SCL 323 (GUJ HC).
9
OL of Piramal Financial Services Ltd v RBI [2004] 51 SCL 691 (GUJ HC).
10
VGP Finances Ltd v Official Liquidator [2018] 89 taxmann.com 209 (Mad HC).
11
United Nation Commission on International Trade Law, General Assembly, Legislative Guide on Insolvency
Law (UNCITRAL Legislative Guide) (UN Publication Sales No E05.V.10 205) 144 [179].
12
13
UNCITRAL Legislative Guide, 140 [166]; Re Healthcentral.com 504 F 3d 775, 790 (9th Cir. 2007) (CA).
14
Downs Distributing Co Pry Ltd v Associated Blue Star Stores Pry Ltd [1948] HCA 14; Re Grand Chevrolet Inc
25 F 3d 728 (9th Cir. 1994) (CA).
15

3.2 THERE IS NO DOMINANT MOTIVE ON THE PART OF ACL.

[¶ 08] It is submitted that mere preference is not sufficient to draw inference that the transaction
was fraudulent.16 Dominant motive coupled with the element of dishonesty needs to be
established.17 If the circumstances proven are equally consistent with guilt or innocence, the
benefit of doubt goes to the accused, thus charge needs to be proved beyond reasonable doubt.18
Suspicion, however strong, will not be sufficient; if there is room for any explanation pertaining
to Debtor's conduct.19
[¶ 09] In the present case, there is no direct evidence to prove intention on the part of APL to
give favoured treatment to ACL. This section, therefore, cannot be invoked.20 Further, APL
was bound by a legal obligation which doesn’t amount to fraudulent preference.21
ISSUE:4 THAT THE APPLICATION FOR ENFORCEMENT OF PERSONAL GUARANTEE AGAINST

MR. ARVIND KUMAR IS NOT SUSTAINABLE.
[¶ 10] It is humbly submitted that the present application filed by RST Bank before the Hon’ble
Tribunal regarding enforcement of personal guarantee against Mr. Arvind Kumar [Refer to p.
LXXXI under part III Enclosures] should not be accepted as a personal guarantee cannot be
enforced until & unless the liability of Corporate Debtor has been crystallised.22 In the present
scenario, the liability of Corporate Debtor shall only be crystallised, when NCLT approves of
the Resolution Plan under §31 or passes an order of liquidation under §33 of the Code.23 Also,
an application for proceeding against a personal guarantor cannot be accepted as the liability
16
OL v MD State Financial Corp (2000) 26 SCL 303 (AP HC); Morpen Finance Ltd v RBI (2004) 4 CompLJ 357
(Delhi HC); A Ramiya, Guide to the Companies Act 2013, vol 3 (18th edn, Lexis Nexis 2015) 5195.
17
Re Prudential Capital Markets Ltd (In Liquidation) (2008) 84 SCL 239 (Cal HC); Monrak Enterprises v Kishan
Tulpule (1992) 74 ComCas 89 (Bom HC).
18
Re M Kushler Ltd (1943) 13 Comp Case 219 (CA); Re Beacon Leisure Ltd (1992) BCLC 565.
19
Bank of Maharashtra v OL Navjivan Trading Finance Pvt Ltd [1999] 96 CompCas 234 (GUJ HC).
20
Hind Iran bank v Raizada Jagan Nath (1959) 29 ComCas 418 (PUN HC); CR Datta, Company Law, vol 3 (7th
edn, Lexis Nexis 2017) 3.1505; OL Victor Pvt Ltd v Kanhiya Lal (1972) 42 Comp cas. 396 (Delhi HC).
21
Sir D F Mulla, The Law of Insolvency Law in India (Sathaya Narayan ed, 5th edn, LexisNexis 2013) 574.
22
Oshi Foods Ltd v State Bank of India (1997) SCC OnLine MP 160 [10].
23
Sanjeev Shriya v State Bank of India & others [2017] 87 taxmann.com 309 (Allahabad HC); Rishi Thakur,
‘Corporate Insolvency Resolution Process under Insolvency and Bankruptcy Code and the Dilemma
Surrounding Guarantee’ (January 2017)<https://www.livelaw.in/corporate-insolvency-resolution-process-
insolvency-bankruptcy-code-dilemma-surrounding-guarantee/>accessed August 30 2018.

of ACL is still in fluid situation & the same has not been crystallised as of now till the time
CIRP is going against the Corporate Debtor.24
[¶ 11] In Arguendo, even in terms of equity, the Applicant, RST Bank would not suffer any
prejudice by non-enforcement of personal guarantee as it has already claimed the amount of
debt in the CIRP of Corporate Debtor & his interest is protected in the form of Resolution Plan
which will be approved by COC which may also include provisions as to the payments made
by such guarantor.25 Further, it is pertinent to note that BLRC envisages as an adjudicator to
lead the bankruptcy process in the event insolvency resolution process fails.26 Direct
application for bankruptcy is not possible.27 Therefore, direct application for bankruptcy of
personal guarantor should not be accepted as it will defeat the very purpose of the code.
ISSUES ON BEHALF OF THE INSOLVENCY PROFESSIONAL
ISSUE:1 THAT RP JUSTIFIED IN REJECTING THE CLAIM OF GKCL AS FINANCIAL CREDITOR
[¶ 12] It is humbly submitted that GKCL submitted its claim as a secured Financial Creditor
[Refer to p. XLIV under part II Enclosures]. However, the claim is arising out of provision of
services, i.e. construction of storage facilities. GKCL, presently is an Operational Creditor
whose liability from the entity comes within its operations. 28 The components of operational
debt were laid down by Ld. Tribunal in AMR Infrastructures,29 viz. debt arising out of
provision for services.30
1.1 THAT THE MAJOR REQUIREMENTS OF FINANCIAL DEBT STAND DISPUTED
[¶ 13] It is humbly submitted that purchase agreement as contemplated by §5(8) (f) may or
may not be regarded as a financial transaction.31 A forward contract to sell a product at the end
24
25
Insolvency and Bankruptcy Code 2016 (I&B Code 2016), s 31(1).
26
Report of Bankruptcy Law Reform Committee, Ministry of Finance, Government of India (November 2015)
para 6.5.1 [BLRC Report].
27
Guide to Insolvency and Bankruptcy Code 2016 (Taxmann’s 2018) I-42.
28
BLRC Report para 5.2.1.
29
Col Vinod Awasthy v AMR Infrastructures Ltd [2017] 80 taxmann.com 268 (NCLT - New Delhi).
30
I&B Code 2016, s 5(21).
31
AMR Infrastructures (n 30).
WRITTEN SUBMISSIONS ON BEHALF OF INSOLVENCY PROFESSIONAL 4

of a specified period is not a financial contract. It is essentially a contract for sale of specified
goods. Furthermore, it is worthy to note that ‘assured return’ has got nothing to do with the
requirement of §5(8), it is only associated with the delivery of possession of property.
Therefore, it is clear that there is nothing on record to suggest that the amount had been
'disbursed' in favour of 'Corporate Debtor' against 'consideration for the time value of money'.
The contesting Respondents have also failed to bring on record any evidence to suggest that
the money was ‘borrowed’ or ‘raised’ by the Corporate Debtor under any other transactions
including sale or purchase or other mode having ‘commercial effect of borrowing’.
1.2 THAT THERE IS NO PARITY BETWEEN THE AMOUNT OF CLAIM AND ACTUAL DEFAULT
[¶ 14] It is submitted that where a claim is alleged to be doubtful and questionable in the factual
matrix, the application must be rejected.32 Mere guarantee of an assured amount does not give
rise to a financial debt. In the instant case, the outstanding amount of INR 250 Crores is an un-
matured amount. Subsequently, taking into consideration the agreement being entered in 2010,
the outstanding amount stands inflated as the transaction will mature in 202033 & it is not
possible under any circumstance to have such an extortionate amount payable currently.
ISSUE:2 THAT PAYMENT MADE TO TTCL OUT OF INTERIM FINANCE IS NOT CONTRARY TO
LAW.
[¶ 15] It is humbly submitted that the interim finance provided to TTCL was not unnecessary
& contrary to the provisions of law as it was for the continuation & survival of ACL’s business.
Interim finance constitutes any fund that is reasonably & necessary for the Debtor’s business
to survive its operations.34 Continuing finance is fundamental to any corporate rescue plan and
often regarded when a Company is financially distressed & inevitably finds itself in a situation
where access to finance is limited.35
[¶ 16] Further, interim finance may inspire confidence in vendors to keep supply lines open,
skilled manpower to remain in their jobs and customers to keep patronising the Debtor for
32
M/s VDS Plastics Pvt Ltd v M/s Pal Mohan Elec Pvt Ltd (CP No. (IB)-37(ND)/2017) (NCLT - New Delhi).
33
34
Jennifer Payne & Janis Sarra, Tripping the Light Fantastic: A comparative analysis of theEuropean
Commission’s proposals for new and interim financing of insolvent businesses (2017) 1.
35
Akpareva Wendy Aruoriwo, ‘Business funding in corporate rescue: the UK perspective’ (DPhil thesis,
Nottingham Trent University 2014).

goods and services.36 It is pertinent to note that interim financing provides companies with all
sorts of necessary tools required to give them a fighting chance of survival.37
[¶ 17] Presently, RP was correct in raising interim finance so as to maintain the business
operations of ACL in order to pay for crucial supply of goods & services in Rajasthan and
Karnataka site. This included the salary of workers & employees and an attempt to avoid the
value erosion of ACL’s assets which was also approved by COC.38Thus, it is very much clear
that RP raised interim finance in good faith and for the smooth functioning of ACL’s business.
ISSUE:3 THAT THE APPLICATION FOR RECOGNITION OF FOREIGN PROCEEDING SHOULD

NOT BE ACCEPTED
[¶ 18] It is humbly submitted that the facts on record furnish that Mr. Kelvin Murray, who had
been appointed as an interim trustee of ALSL for insolvency proceedings in USA had applied
for recognition of same39 [Refer to p. XCVII under part III Enclosures] in India as per the
Model Law. The present proceedings under Art. 1740 should not be recognized as the Model
Law prescribes non-recognition where foreign proceedings fall outside the State which may
not be construed as Centre of Main Interest (COMI)41 of the Debtor.
[¶ 19] It is worthy to appreciate the main factors for determination of COMI which include,
the place where central administration of Debtor takes place which is also ascertainable by
third parties.42 Herein, the term central administration means the place from where the
36
S D Cousins, ‘Post-petition Financing of Dot-coms’ (2002) Del J Corp L 759; Re Fairview Industries Ltd 1991
CanLII 4287 (NS SC).
37
B A Henoch, ‘Post petition Financing: is There Life After Debt?’ (1991) BANKR DEV J 575; Re Dylex Ltd
(1995) CanLII 7370.
38
Susan Block-Lieb Latham & Ors, Post-Commencement Finance Excerpts from Draft Uncitral Legislative
Guide on Insolvency Law International Insolvency Institute (2004); Gerard McCormack, Corporate rescues-
Anglo American perpective (Edward Elgar Ltd 2008); Moot Proposition, Pg 07.
39
Moot Proposition, Pg. 8.
40
Model Law on Cross-Border Insolvency of the United Nation Commission on Trade Law (UNCITRAL
Model Law), GA Res 52/158, UN GAOR, 6th Comm, 52nd Sess, Agenda Item148, UNDOS A/RES/52/158 (30
January 1998) Art 17.
41
United National Commission on International Trade Law ‘Interpretation and application of selected concepts
of the UNCITRAL Model Law on Cross-Border Insolvency relating to centre of main interests (COMI)’ 41
session, UN Doc A/CN.9/WG.V/WP.103 (28 February 2012) 8 [37A].
42
Case C-341/04 Re Eurofood IFC Ltd [2006] ECR I-3813, para 32; Council Regulation (EC) 1346/2000 of 20
May 2000 on insolvency proceeding [2000] OJ L160/1, recital 13; Re Massachusetts Elephant & Castle Group
Inc (2011) 81CBR (5th)102 [30]-[31]; Re Angiotech Pharmaceuticals Ltd (2011) 76 CBR (5th) 317 [7].

Company relevant organ i.e. Director, according to its own constitution document takes
decisions which are essential for the operation’s of Company.43 In the present case, India can
be construed as a place for central administration of ALSL as the Director of ALSL manages
the Company from India which also fulfils the command & control test.
[¶ 20] Furthermore, when Company’s central administration is not at the same place as its
registered office, then some other factors i.e. the place where the Debtor holds its assets and
the place from where Company pursues its major economic activities are majorly taken into
consideration as these factors are ascertainable by third parties.44 In the present case, ALSL
earned majority of its profit from office other than USA45 which proves the fact that its major
economic activity was carried from other states which can be ascertainable by its creditors.46
[¶ 21] Reliance can also be placed on the Tucker case, where the Court propounded, “COMI
of a Company to be in UK where it had its registered office in Canada but had its business
interest globally & director manage the affairs from UK, where its holding Company was
listed.47 Hence, the fact that central administration took place from places other than USA &
major economic activities are also carried from places other than USA, is enough to rebut the
presumption laid down in Art. 16(3) of the Model Law that COMI is not at the same place as
its registered office. Therefore, proceeding cannot be recognised as foreign main proceedings.
[¶ 22] In Arguendo, the present proceedings should not be recognised as foreign non-main as
the mere fact that insolvency proceedings are commenced in USA or the existence of debt and
Bank accounts are in USA, does not principally satisfy the definition of establishment for
recognition of foreign proceeding as non-main proceedings.48
43
Young v Anglo American South Africa Ltd & Ors [2014] EWCA Civ 1130, [2014] 2 CLC 143 (CA) 157 [45].
44
Case C-396/09 Interedil Srl v Fallimento Interedil Srl [2011] ECR I-9915, para 52.
45
Clarification to the Moot Proposition, Pg 1, 2, 5.
46
Interedil Srl (n 45).
47
Tucker v Aero Inventory (UK) Ltd [2009] ONSC 63138; Re Northsea Base Invest ltd & Ors [2015] EWHC 121
(Ch); Re Bear Stearns High-Grade Structured Credit Strategies Fund Ltd 389 BR 325 (SDNY 2008)
48
UNCITRAL Model Law with Guide to Enactment and Interpretation, 55 [90].

ISSUE 4: THAT THE RP IS JUSTIFIED IN REJECTING THE CLAIM OF APL
[¶ 23] It is humbly submitted that RP occupies a pivotal role, right from the day of his
appointment49 as a forensic auditor to cater the admissibility of financial evidence and inculcate
specialised skills & expertise to aid the adjudicator in various tasks in an effective and efficient
manner. It is for the RP to ensure that resistance does not develop into a crisis, bringing the
resolution process to a grinding halt50 as it shall be incumbent upon the RP to ensure that the
Corporate Debtor undergoes a detailed forensic audit51 in order to report avoidable
transactions. In the instant case, certain transactions entered by ACL were found to be
‘avoidable’ upon conducting a ‘forensic audit’ by the RP of ACL.52
[¶ 24] It is pertinent to note that forensic audit is conducted to detect & gather financial
evidence and instances of misappropriation & embezzlement for curing loss through irregular
transactions. It is, therefore necessary that a person conducting forensic audit has no conflict
of interest, whatsoever.53 In the instant case, the claim submitted by RP of APL cannot be
sustained on the ground of those avoidable & irregular transactions found by RP of ACL upon
conducting the forensic audit duly and diligently.
ISSUE 5: THAT EXCESS PAYMENT MADE TO APL MUST BE AVOIDED
[¶ 25] It is humbly submitted that the excess money received by APL in the year 2016-17 being
an avoidable transaction [Refer to p. LXXXV under part III Enclosures] cannot be allowed to
set-off under any circumstance. This will be further substantiated on the following grounds.
5.1 THERE LIES INSTANCE OF AVOIDABLE TRANSACTION
[¶ 26] APL is wholly owned by ACL54 which makes it fall within the purview of a related
party.55 The transactions could be avoided if in case the transfers made in favour
of related parties fall within the period of two years preceding the insolvency commencement
49
Sumant Batra, Corporate Insolvency Law and Practice (EBC 2017) 306, 311.
50
ibid 311.
51
Vallari Dubey, ‘Contents of Resolution Plan Redrawn Duties of RP redifined’ (November 2017).
52
53
Insolvency and Bankruptcy Board of India (Disciplinary Committee) Order 2018, IBBI/DC/07/2018.
54
Clarifications to Moot Proposition, Pg 4.
55
Edelweiss Asset Recons Co Ltd v Synergies Dooray Automotive Ltd [2017] 85 taxmann.com 136 (NCLT - Hyd).

date.56When transactions lead to excess payment in suspect period, the bad faith is presumed
to exist.57 Also, the defense of good faith will not be applicable in case of a related party as
they will have a better understanding about the Debtor ́s affairs.58 The excess payment, can’t
be justified by merely giving a window of ordinary course of business, thereby making the said
transaction avoidable.
5.2 SET-OFF CANNOT BE SUSTAINED IN PURSUANCE OF AN AVOIDABLE TRANSACTION
[¶ 27] In Arguendo, There is no provision under Indian law that imposes a mandatory set-off
for mutual debts, as all debts are ranked according to priority and repaid accordingly.59 The
principle of equitable set-off is applicable only in respect of demands & cross-demands arising
out of the same transaction.60 The relief of equitable set-off could not be availed in respect of
transactions in different years.61 A Debtor from whom money have been recovered as a
fraudulent preference, later cannot seek another set-off against the sums recoverable.62 In the
present case, the transaction couldn’t be allowed to set-off as the Company has other creditors
also who are to be paid after CIRP, thereby setting off this transaction will also result in
occurrence of a preferential transaction63 and a creditor will not be permitted to raise a set-off
to defend a preference claim brought by the RP.64
ISSUE:6 THAT RP IS JUSTIFIED IN REJECTING THE REVISED RESOLUTION PLAN
[¶ 28] It is submitted that as per the Code, if CoC has taken a decision as prescribed under the
code, there is no point of NCLT transgressing into the jurisdiction of CoC.65 The Adjudicating
56
BCL Homes Ltd v Canara Banks [2018] 93 taxmann.com 279 (NCLAT).
57
UNCITRAL Legislative Guide, 151 [200].
58
Aurelio Martínez, ‘The Avoidance of Pre-Bankruptcy Transactions: An Economic and Comparative
Approach’<chromeextension://oemmndcbldboiebfnladdacbdfmadadm/https://www.iiiglobal.org/sites/default/f
iles/media/AGM.%20The%20Avoidance%20of%20PreBankruptcy%20Transactions.%20Final_0.pdf>
59
Shishir Mehta & Ors, ‘Restructuring and insolvency in India: overview’ (2017) Global Guide Restructuring on
Insolvency in India.
60
Globe Forex & Travels Ltd v Siddharth Sett [2015] 53 taxmann.com 456 (Cal HC).
61
Re Concast Exim Ltd [2015] 64 taxmann.com 140 (Cal HC).
62
Patrick O'Callaghan, ‘Set-Off on Insolvency’ (1998) Commercial Law Practitioner 20.
63
John C. McCoid, II, ‘Set-off: Why Bankruptcy Priority?’ (1989) Vol 75 Virginia Law Review 15.
64
Re Washington Diamond Mining Co [1893] 3 Ch 95 (CA); Lister v Hooson [1908] 1 KB (CA).
65
Re Gupta Energy Pvt Ltd [2018] 93 taxmann.com 391 (NCLT - Mum).

Authority has no jurisdiction to exercise over a decision taken by the CoC as contemplated
under the Code.66 Where no provision of law for the time being has been contravened, the
application filed by Resolution Professional for accepting the Resolution Plan approved
by CoC as submitted in the instant case by Resolution Applicant: RCL[Refer to p. XCIX under
part III Enclosures] should be readily accepted by NCLT.67
ISSUES ON BEHALF OF THE OPERATIONAL CREDITORS
ISSUE:1 THAT THE CLAIM OF GKCL AS A FINANCIAL CREDITOR SHOULD BE ACCEPTED
[¶ 29] It is humbly submitted that RP rejected the claim of GKCL on groundless notion.
However, it is respectfully submitted before the Ld. Tribunal that GKCL fulfils the requirement
of being classified as a secured Financial Creditor [Refer to p. XLVI under part II Enclosures]
on the following grounds.
1.1 THAT THE MAJOR REQUIREMENTS OF FINANCIAL DEBT STAND UNDISPUTED
[¶ 30] It is submitted that a Financial Creditor is the one to whom a financial debt is owed.68
The Respondent Company, owes an outstanding sum of INR 250 crores as on 30.03.201869 to
GKCL. This debt can be attributed with a kind perusal to the Hire Purchase transaction dated
05.07.201070 & §5(8) (d) of the code which does not distinguish a hire purchase from a long
term funding in all practicalities,71 the definition being an inclusive one and not exhaustive.72
[¶ 31] It is submitted that the very essential requirement of financial debt has to be met viz,
that the debt including interest is disbursed against consideration for time value of money. Such
a commercial effect of borrowing73 is always reckoned while making such advances as in the
instant case, the outflow is distanced by time & there is compensation in the form of
66
ICICI Bank Ltd v Innoventive Industries Ltd [2017] 88 taxmann.com 230 (NCLT – Mum).
67
State Bank of India v Bhushan Steel Ltd [2018] 93 taxmann.com 307 (NCLT- New Delhi).
68
I&B Code 2016, s 5(7).
69
70
71
Assn of Leasing & Financial Services Co v Union of India (2011) 2 SCC 352 (SC) [20]-[21].
72
Batra (n 49).
73
Nikhil Mehta and Sons v Amr Infrastructure Ltd [2017] 84 taxmann.com 163 (NCL-AT) [24]-[25].
WRITTEN SUBMISSIONS ON BEHALF OF OPERATIONAL CREDITORS 10

consideration to be paid by ACL to GKCL amounting to INR 500 crore along with interest
over a period of 10 years. This promise, of an ‘assured return’ is essentially the amount of
interest74 thus making the Applicant (GKCL) analogous to a financial debt.
1.2 IN ARGUENDO, THE PURCHASE AGREEMENT IS AKIN TO A FINANCIAL LEASE AGREEMENT
[¶ 32] It is submitted that Financial Creditors are those, whose relationship with the entity is a
pure financial contract, such as a loan or debt security. Financial lease is nothing but loans in
disguise.75 Loans, on the other hand, are debts repayable.76 The lease period provides a right to
enjoy the property for certain time under which the lessee is put in possession of the property,77
whereas the lessor merely finances the acquisition of the asset and retains title over it.
Similarly, in the instant case, Ld. Tribunal must take into consideration, the purchase
agreement contemplating the completion of construction and subsequent handover of storage
facilities immediately upon completion of construction to ACL, subsequently, the maturity date
fixed therefor and the terms of the agreement relating to the demand, on the making of which
the debt will become repayable. In other words, unlike a loan, there is no immediate obligation
to repay in the present case, therefore, the outstanding amount to GKCL falls within the
definition of financial debt, viz. under §5(8)(d). Furthermore, since GKCL holds security
interest on the storages, i.e. association as a dealer for 30% of ACL’s sales, it falls within the
ambit of § 3(30), i.e. secured Financial Creditor.
ISSUES ON BEHALF OF FINANCIAL CREDITOR/COC
ISSUE:1 THAT PAYMENT MADE TO TTCL FROM INTERIM FINANCE WAS CONTRARY TO LAW
[¶ 33] It is humbly submitted that the interim finance given to TTCL was unnecessary and
contrary to the provisions of law as it was an avoidable transaction under § 66 of the code
[Refer to p. LXXVII under part III Enclosures]. Interim finance should be declared void if done
with fraudulent intention or in bad faith.78
74
ibid 11.
75
Asea Brown Baveri Ltd v Industrial Finance Corporation of India Appeal (civil) 3574 of 1998.
76
Abdul Hamid Sahib & Ors v Rahmat Br (1964) SCC Online Mad 316.
77
Santilata v Saraju Bala Devi (1955) SCC OnLine Cal 272; State of Madras v OKM Zakina Bivi & Ors (1957)
SCC OnLine Mad 21, 22.
78
Gerard McCormack, ‘Corporate restructuring law - a second chance for Europe?’ (2017) EL Rev 4.
WRITTEN SUBMISSIONS ON BEHALF OF FINANCIAL CREDITORS 11

[¶ 34] It is so, that while raising interim finance, the rights of lenders and parties affected need
to be protected79 as their rights cannot be prejudiced.80 Furthermore, for raising interim finance,
light must be shed on the following aspects81: (a) It must benefit the Corporate Debtor and
creditor as whole.82 (b) It must be actual and necessary.83
[¶ 35] In the present case, an interim finance was raised with an intention to defraud the
creditors which affected their rights, thus it does not fulfil the above laid down test.84 Further,
interim finance cannot be raised for building up new assets85 as interim finance should be kept
as minimum as possible and should only be used for current expenses and not for long term
decisions.86 Therefore, mere showing that it was raised for the business is insufficient.87
ISSUE: 2 THAT PAYMENT MADE BY ACL TO TTCL BEING FRAUDENTLY INTENDED IS AN

AVOIDABLE TRANSACTION.
[¶ 36] It is humbly submitted that the payment of 20 lakhs made by ACL to TTCL just before
the commencement of CIRP was made with an intent to defraud the creditors of ACL, hence
the transaction should be avoided.88 [Refer to p. LXXIX under part III Enclosures] Although,
the onus of proof in the present case is on ACL as the Debtor's inability to satisfactorily explain
the commercial purpose of a particular transaction, it may point to the requisite intent89.
Further, in order to establish that the transaction was carried out with the intent to defraud
creditors, it is submitted that: [A] Directors had knowledge about the Corporate Debtor entering
79
80
Rolef de Weijs & Meren Baltjes, ‘Opening the Door for the Opportunistic Use of Interim Financing: A Critical
Assessment of the EU Draft Directive on Preventive Restructuring Frameworks’ (2018) International
Insolvency Review 224< https://onlinelibrary.wiley.com/doi/epdf/10.1002/iir.1305> accessed 30 August 2018.
81
Re Patch Graphics Inc 58 BR 743 (1986).
82
Re Club Development & Management Corp 27 BR 610 (1982).
83
Patch Graphics (n 81).
84
I&B Code 2016, s 66.
85
86
Woods v City Nat Bank & Trust Co 312 US 262 (1941);Re OPM Leasing Services Inc 23 BR 104 (1982); Otte
v United States 419 US 43 (1974).
87
Club Development & Management (n 82).
88
I&B Code 2016, s 49; BCL Homes Ltd v Canara Banks [2018] 93 taxmann.com 279 (NCL-AT).
89
UNCITRAL Legislative Law [200].

into twilight zone [B] Transaction resulted in substantial loss to the creditors.90
2.1 DIRECTORS WERE AWARE ABOUT THE TWILIGHT ZONE
[¶ 37] It is submitted that the transaction entered into by ACL in March 2018 falls under the
suspect period, i.e. 1 year.91 The directors decided to default on the interest payment to banks
by closing their eyes on the reality of position and carried on its operations having knowledge
of the fact that the Company was becoming insolvent, thereby, constituting wrongful trading.92
2.2 TRANSACTION RESULTED IN LOSS TO CREDITORS
[¶ 38] It is submitted that any legal act disposed of by obligation performed by way of payment
causing avoidable loss to creditors after which the insolvency becomes inevitable, constitutes
wrongful trading.93 If the transaction was unfair in relation to certain creditors and if the Debtor
was insolvent at the time transaction took place or would become insolvent as a result of the
same, then it must be avoided.94 In present case, the filing of CIRP application is a result of
default made in the interest payment by the Corporate Debtor.95 Therefore, such transaction
must be avoided.
ISSUE: 3 THAT PERSONAL GUARANTEE SHOULD BE ENFORCED AGAINST MR. ARVIND

KUMAR.
[¶ 39] It is submitted that the present application for enforcement of personal guarantee against
[Refer to p. LXXXI under part III Enclosures]. Mr. Arvind Kumar should be accepted as
pursuant to §60(2) of the code, bankruptcy proceeding can be initiated against personal
guarantor before such Tribunal where CIRP of Corporate Debtor is pending.96 This position
was also reiterated by various Courts where they observed that: “if a Financial Creditor intends
to proceed against a personal guarantor he may file an application before the same
adjudicating authority where CIRP of Corporate Debtor is pending i.e. NCLT97, although,
90
Batra (n 49) 541-542.
91
I&B Code 2016, s 46; Moot Proposition, Pg 5.
92
Re Continental Assurance Co (2001) BPIR 733; Powdrill v Watson (1995) 2 AC 394 (HL).
93
Batra (n 49) 542.
94
95
96
I&B Code 2016, s 60(2); Moot Proposition, Pg 8.
97
Schweitzer Systemtek India v Phoenix ARC Pvt Ltd (2018) 91 taxmann.com 139 (NCL-AT); State Bank of India
v V Ramakrishnan [2018] 96 taxmann.com 271 (SC).

NCLT is required to decide such proceeding in accordance with provincial insolvency act,
1920.98
[¶ 40] It is pertinent to note that Reg. 36 of IBBI (Insolvency Resolution Process for Corporate
Persons) also sought information as to the personal guarantor when proceedings are initiated
against Corporate Debtor.99 The code clearly points out the intention of Legislature, which is
to make guarantor of Corporate Debtor equally liable for speedy recovery of loan.100 Reliance
is also placed on Vindhaya Vasini101 where the Ld. Tribunal, by invoking jurisdiction under
§60(2) of the code made the personal guarantor liable for the debt of Principal Debtor.
[¶ 41] In the present case, application for enforcement of personal guarantee should be accepted
as the essential perquisite for invoking §60(2) i.e. pendency of CIRP relating to Corporate
Debtor before the very same Ld. Tribunal stands fulfilled.102 Furthermore, the liability of surety
is co-extensive with that of Principal Debtor i.e. surety is liable to the same extend as Principal
Debtor.103 Presently, this liability is immediate104 i.e. Mr. Arvind Kumar who is a surety may
be advanced against without any proceeding against the Principal Debtor.105 Therefore, RST
bank can proceed against Mr. Arvind Kumar without exhausting his remedy against ACL as
the whole object of guarantee is defeated if RST Bank is asked to postpone his remedy against
the guarantor.106
98
State Bank of India v V Ramakrishnan [2018] 96 taxmann.com 271 (SC).
99
Insolvency and Bankruptcy Board of India (Insolvency regulation for Corporate Persons) Regulation 2016,
IBBI/2016-17/GN/REG004, reg 36(f); Insolvency and Bankruptcy (Application to Adjudicating Authority)
Rules 2016, r 7, Form 6, Annexure vi(e).
100
M/s Sicom Investments & Finance Ltd v Rajesh Kumar Drolia (2017) SCC Online Bom 9725 (Bom HC);
Namrata Dubey, ‘The New Conundrum: Guarantor in Insolvency Regime’ (IBBI 2018).
101
Punjab National Bank v Vindhya Vasini Industries Ltd CP (IB0-1170(MB)/2017 (NCLT Mumbai).
102
Moot Proposition, Pg 6, 11.
103
Indian Contract act 1872, s 128; Suresh Narain v Akhauri (1957) SCC OnLine Pat 7 (Pat HC); Madho Sah v
Sitaram (1961) SCC OnLine Pat 101 (Pat HC).
104
Bank of Bihar v Damodar Prasad (1969) SCR 297 [3]; Subankhan v Lalkhan AIR 1947 Nag. 643.
105
Joseph Chitty, Chitty on Contracts, vol 2 (AG Guest ed, 24th edn, Sweet and Maxwell 2977) 1031.
106
Industrial Investment Bank of India Ltd v Bishwanath Jhunjhunwala (2009) 9 SCC 478 (SC) [15].

ISSUE: 1 THAT RECOGNITION & COOPERATION MUST BE PROVIDED IN RESPECT TO THE

FOREIGN PROCEEDINGS
[¶ 42] It is humbly submitted that the application filed by Mr. Murray under Art. 15 of the
Model Law for recognizing foreign proceedings107 [Refer to p. XCV under part III Enclosures]
should be accepted. The present contention can be substantiated on following grounds.
1.1 Centre of main interest pertaining to ALSL lies in USA
[¶ 43] It is a settled principle of corporate law that Company is a separate legal entity even
though the relation between the two are of parent & subsidiary.108 Presently, both ACL &
ALSL should be treated as separate entities & their COMI should be determined separately.109
[¶ 44] It is submitted, that pursuant to Art. 17 of the Model Law, a foreign proceeding can be
recognized as foreign main proceeding or non-main proceeding.110 Presently, former
proceeding is deemed to take place in the State where Debtor has COMI and the later is where
Debtor has an establishment.111 It is worthy to note, that in the absence of proof to the contrary,
the registered office of a Debtor is presumed as his COMI.112 In the present case, COMI of
ALSL lies in USA as the registered office of ALSL stands located in USA.113 Subsequently,
the burden of proof to the contrary lies on the other party.114
107
UNCITRAL Model Law, Art 15.; Moot Proposition, Pg 8-9.
108
Vodafone International holding BV v Union of India [2012] 17 taxmann.com 202 (SC); Salomon v A Salomon
Co Ltd (1897) AC 22 (HL); Catherine Lee v Lee's Air Farming Ltd [1960] UKPC 33; Ban Hashem v Ali Shayif
(2008) EWHC 2380.
109
Re Lightsquared LP (2012) ONSC 2994 [29]; Case C-341/04 Re Eurofood IFSC Ltd [2006] ECR I-3813, 37.
110
United Nation Commission on International Trade Law, UNCITRAL Model Law on Cross-Border Insolvency
with Guide to Enactment and Interpretation (UN Publication Sales No. E.14.V.2 2014) 9, 73; Re Fairfield Sentry
Ltd 714 F 3d 127 (2ND Cir 2013) (CA).
111
United Nation Commission on International Law, UNCITRAL Model Law on Cross-Border Insolvency: The
Judicial Perspective’ (The Judicial Perspective UN 2014) 17 [45].
112
UNCITRAL Model Law with Guide to Enactment and Interpretation, 68-69; Re Northsea Base Investment ltd
& Ors [2015] EWHC 121 (Ch); Gainsford v Tannenbaum (2012) 293 ALR 699, 707 [35].
113
Clarification to the Moot Proposition, Pg 1, 2.
114
Re Stanford International Bank Ltd & Ors [2010] EWCA Civ 137; UNCITRAL Model Law with Guide to
Enactment and Interpretation 70 [143].
WRITTEN SUBMISSIONS ON BEHALF OF OTHER PARTIES 15

[¶ 45] In Arguendo, for determination of COMI, there is absence of particular formula.115

Rather, the Court may place reliance on a variety of factors which are both objective and
ascertainable by third parties.116 These factors include the “place where Debtor was
incorporated, location of Debtor primary bank, the law governing the Company, the location
of the main creditors.117 In the present case, the fact that ALSL was incorporated in USA, all
the banks stand deemed US based banks. Further, these banks having approached the US court
for insolvency proceedings, itself convey that COMI of ALSL lies in USA as USA is readily
ascertainable by creditors.
[¶ 46] In conclusion, mere fact that decision of the company is taken from some place other
than its registered office is not enough to rebut the presumption118 as there is no reason why a
third party would have any knowledge of the location from where the director manage the
Company affairs. Reliance must be placed on Re Sphinx Ltd119 where the Court regarded
registered office as place of COMI, even though decision of management were taken from
some other place.
1.2 The Model Law aids to cooperation between two states.
[¶ 47] It is submitted that Art. 25 & 26 of the Model Law mandate cooperation between the
domestic & foreign Court or foreign representative.120 As per the matter referred to in Art. 1,
this cooperation is not dependent upon recognition121 i.e. cooperation can be provided in case
no recognition is provided by the Court. In the present case, cooperation must be provided to
Mr. Murray as the present case falls under Art. 1 of the Model Law as assistance is sought
domestically by a foreign representative. Therefore, cooperation must be provided for the loan
of 100 million to Mr. Murray as per the forms referred under Art. 27 of the Model Law.
115
Re Betcorp Ltd (in liquidation) 400 B.R. 266 (Bankr D Nev 2009).
116
Re Eurofood IFSC Ltd (n 110).
117
UNCITRAL Model Law with Guide to Enactment and Interpretation, [144], [147]; Re Bear Stearns High-
Grade Structured Credit Strategies Master Fund Ltd 389 BR 325 (SDNY 2008); Re Probe Resources Ltd (2011)
79 CBR (5th) 148 [28].
118
Re Eurofood IFSC Ltd (n 110).
119
Re Sphinx Ltd 351 BR 103 (Bankr, SDNY 2006) 117; Neil Hannan, Cross Border Insolvency: The Enactment
and Interpretation of the UNCITRAL Model Law (Springer Nature Singapore 2017) 119.
120
UNCITRAL Model Law with Guide to Enactment and Interpretation, 97-98.
121
UNCITRAL Model Law with Guide to Enactment and Interpretation 30 [40].

ISSUE: 2 THAT CLAIM OF APL BEING AN ESSENTIAL SUPPLIER MUST SUBSIST
[¶ 48] It is humbly submitted before the Ld. Tribunal that APL falls under the definition of
operational creditor [Refer to p. LXXXVII under part III Enclosures], whereby the amount due
against ACL falls under the definition of operational debt.
“Any person to whom an operational debt is owned including any person to whom such debt
has been legally assigned or transferred” is an Operational Creditor. Operational Creditors are
those whose liability from the entity comes from a transaction on operations122 and who supply
goods or render any service.123 In the present case, APL is that acceptor whose liability from
the entity comes directly out of its operations, i.e. generation of electric power and fly ash.
[¶ 49] It is submitted that a supplier of essential services & goods would acquire the status of
an Operational Creditor.124 Further, amounts due to essential suppliers are a component of
insolvency resolution process costs125 which unquestionably mark the claim of 95 crore, a valid
operational debt to be paid in priority. This claim can be attributed towards the PPA entered in
2006 where ACL was entitled to essential services from APL in the form of ‘power’ and ‘fly
ash’ to support its operations. It is worthy to note that fly ash is by-product from burning
pulverized coal in ‘electric power’ generating plants.126 The PPA mandated services to be
delivered to ACL which were totally meant to serve its ‘working capital’ requirements for
running the manufacturing unit & simultaneously paying its debt obligations.127
[¶ 50] Henceforth, with a kind perusal to the PPA, it is pleaded that ACL’s default of 95 crores
be considered & subsequently, APL’s claim as an Operational Creditor be admitted.
ISSUE: 3 THAT EXCESS PAYMENT MADE TO APL SHOULD BE ALLOWED TO SET-OFF.
[¶ 51] It is humbly submitted that where there are mutual dealings between the Corporate
Debtor and another party, the sums due from one party shall be set off against the sums due
122
BLRC Report para 5.21.
123
AMR Infrastructures (n 30).
124
I&B Code 2016, s 5(20), 5(21).
125
Insolvency and Bankruptcy Board of India (Insolvency regulation for Corporate Persons) Regulation 2016,
IBBI/2016-17/GN/REG004, reg 32.
126
Kim D. Basham & Ors, ‘What is Fly Ash’ (07 December 2007)<https://www.concreteconstruction.net/how-
to/materials/what-is-fly-ash_o> accessed 30 August 2018.
127
N Parthasarthy v Controller Capital Issues (1991) 2 SCR 329 (SC).

from the other to arrive at the net amount payable to the Corporate Debtor or to the other party.
128
Any right to payment can be a “debt,” and the two “debts” underlying a set-off need not be
related except that they should ordinarily be between the same two legal entities. 129 The right
of set-off exists when the debts are mutual, valid and enforceable.130 When there exists both
sided obligations, the set-off must be allowed against counter claim.131
[¶ 52] In the present case, the excess amount paid by ACL is a debt owed on part of APL and
the debts according to PPA are payable by ACL to APL, proving existence of mutuality of
debts, therefore, allowing the set-off requirement.
ISSUE: 4 THAT THE MORTGAGE CREATED BY APL OVER ITS LAND SHOULD BE AVOIDED.
[¶ 53] It is submitted that the mortgage created by APL is an avoidable transaction as it is a

preferential transaction and made with an intent to defraud creditors. Further, the said mortgage
was created without any consideration in favour of ACL, thereby making it undervalued.
[¶ 54] It is submitted that the said transaction occurred within relevant time for the benefit of
ACL who is an Operational Creditor. It is so that an operational debt includes services rendered
by a person for consideration132 which could also be in form of advice.133 In the present case,
ACL provided necessary transmission facility to transfer power to grid134 with some other
managerial and financial assistance.135 Pursuant to this transaction, ACL became a secured
128
OL High Court of Karnataka v Smt V Lakshmikutty [1981] 51 Comp Case 566 (SC)Abhay N Manudhane,
‘FAQs on Submission of Claims under CIRP (5 May 2018) <http://sknl.co.in/FAQs%20on%20Submission%20
of%20Claims %20under%20Resolution.pdf>; accessed 30 August 2018.
129
K&LNG Alert, ‘Getting to Know your to best friend: The Rights of Set-Off and Recoupment’ (December
2005)<http://www.klgates.com/files/Publication/56da8ca6ba6a49738fa43b2d8aaf05a5/%20Presentation/Publi
cationAttachment% 20/77554d2e-5845-481f-9f1c-4f3a7f161e4d/ba1205.pdf> accessed 30 August 2018.
130
Re Bevill Bresler & Schulman Asset Mgmt. Corp 896 F 2d 54, 59 (3d Cir 1990) (CA); St. John’s Bankruptcy
Research Library ‘The Differences between the Right to Set-Off under 11 USC s 553 and 11 USC s 558’ vol
6<https://www.stjohns.edu/sites/default/files/documents/law/bankruptcy/bank-research2014-11-ehlinger.pdf>
acceded 30 August 2018.
131
RDC Concrete India Pvt Ltd v Bengal Unitech Universal Infrastructure Pvt Ltd [2018] 89 taxmann.com 405
[NCLT-Delhi].
132
Ravindra Gopal v Tattva & Mittal Lifespaces Pvt Ltd [2018] 91 taxmann.com 378 (NCLT - Mum) [8.1].
133
Sanjaya Kumar Ruia v Magna Opus Hospitality Pvt Ltd (CP NO.65/I&BP/NCLT/MB/MAH/2017, para 6;
MS Sahoo & Ors, Compedium on IBC (Wolters Kluwer 2017) 1.2.19.
134
135
Jaypee Infratech Ltd (n 7).

creditor from an unsecured creditor with a much beneficial position in accordance with §53.136
[¶ 55] Further, as this was a voluntary transaction, it satisfies the test laid down to prove
preferential transaction as well.137 It is pertinent to note that the said mortgage was without any
consideration which is an evidence of an undervalued transaction as well.138Moreover, the
mortgage was created by APL for the benefit of ACL at the time when it was not able to pay
salary to its workers139 and having knowledge of the fact that there are no reasonable prospects
for the creditors ever receiving payment pursuant to this transaction.140 Finally, the credit
facility agreement must be taken into consideration where APL was required to obtain approval
of lenders for creating interest in favour of anyone which was never done. It is very much
understood that APL carried on business with an intent to defraud the creditors.141 Thus, the
said transaction should be reversed as per the § 44 of the code.
ISSUE: 5 THAT REVISED PLAN PROPOSED BY JMCL SHOULD BE ACCEPTED.
[¶ 56] It is humbly submitted that Reg. 39 of CIRP regulations provide that a Resolution Plan
should be accepted if it is submitted 30 days before the completion of CIRP proceedings.
Further, if considerable time is still left before completion of CIRP process, then even if
Resolution Plan is submitted after the deadline set by RP or CoC, it can be taken into
consideration.142 As in the instant case, Resolution Plan submitted by JMCL on 19-10-2018143
falls within the prescribed time limit.
136
UNCITRAL Legislative Guide, 136 [150]; Jaypee Infratech Ltd (n 7).
137
Re Trustee Ex Parte (1924) (2) Ch D 515; Motorola India Ltd v DSS Mobile Communications Ltd [2006] 65
SCL 107 (Delhi HC); OL of Piramal Financial Services v RBI (2004) 51 SCL 691 (GUJ HC); OL of Piramal
Financial Services v Decimal Systems (2009) 91 SCL 31 (GUJ HC).
138
UNCITRAL Legislative Guide 143 [175]; Sunder Lal Jain v Sandeep Paper Mills Pvt Ltd [1986] 60 Comp
Case 77 (P&H HC); Shikha Bansal, ‘Liquidation of Corporate Persons under The Bankruptcy Code’ (2017) 80
taxmann.com 204; Jaypee Infratech Ltd (n 7).
139
Jaypee Infratech Ltd (n 7); Re Company A (1990) BCC 526 (HC); Re Parasrampuria Trading & Finance Ltd
[2006]70 SCL 342 (All HC); OL Kerala High Court v Victory Hire Purchasing Co Pvt Ltd [1982] 52 Comp
Cas 88 (Ker HC); Re Patrick & Lyon Ltd [1933] 3 Comp Cas 449.
140
OL v Ram Swarup (1997) 2 Comp LJ 221 (Allahabad HC); Re William C Leitch Brothers Ltd [1933] 3 Comp
Cas 97 (CD); Re Peerdan Juharmal Bank Ltd [1954] 24 COMP CASE 41 (Mad HC).
141
Sir DF Mulla, The Law of Insolvency Law in India (Sathaya Narayan ed, 5th edn, LexisNexis 2013) 570; Re
Victor Chit funds (1972) 42 Comp Cas 396; OL v Ashok Kumar Dalmia [1999] 98 Comp Cas 269 (Raj HC).
142
Punjab National Bank v Bhushan Power & Steel Ltd [2018] 92 taxmann.com 369 (NCLT-Delhi).
143
Clarification to Moot Proposition, Pg 5.

[¶ 57] In Bank of Baroda, In re vs144, the same issue was raised and the Court held that
“Whenever a resolution Applicant's plan is under consideration of CoC and that plan is not
at all placed before the Adjudicating Authority for approval and if another resolution
Applicant comes forward making an offer before CIRP duration expires, that it will satisfy all
stakeholders of Corporate Debtor, then there is nothing in Code or Regulations to prevent CoC
from considering a revised offer of another Applicant If a resolution Applicant is willing to
present the revised Resolution Plan then COC should be directed to reconsider the Resolution
Plan”. Hence, the Resolution Plan submitted by JMCL should be considered.
ISSUE: 6 THAT RP OF APL BEING A NECESSARY PARTY SHOULD BE IMPLEADED
It is humbly submitted that the application filed by RP of APL must be admitted [Refer to p.
XCVII under part III Enclosures] as § 60(5) (b) provides jurisdiction to NCLT in order to
adjudicate upon the claims of subsidiaries of Corporate Debtor. If a legal right of a person is
affected if not added as a party then such person should be impleaded.145 If there is a question
which cannot be settled without such impleadment then it must be allowed by ld. Tribunal.146
Subsequently, a person having interest in the estate could be impleaded as a party.147 In the
present case, APL is a wholly owned subsidiary148 and an Operational Creditor to the Corporate
Debtor, thereby providing the Ld. Tribunal, reasonable locus in order to adjudicate more
effectually and completely.149
Following the test of impleadment as laid down in S. Krishnan v Rathinavel Naicker &
Others150 “A party can be impleaded when the relief prayed for in the proceedings is sought to
be made binding on him or when it is felt that he would be adversely affected by the ultimate
outcome of the proceedings.” Hence, APL is an Operational Creditor being bound by
proceedings regarding Resolution Plan satisfies the test of impleadment.
144
[2018] 93 taxmann.com 331 (NCLT - Kolkata).
145
Terai Tea Co Pvt Ltd v Kumkum Mittal (1993) SCC OnLine Cal 270.
146
Ramesh Chandra Mal v Municipal Corpn of Greater Bombay (1992) 2 SCC 524 (SC).
147
Indian Associates v Shivendra Bahadur Singh (2003) SCC OnLine Del 180.
148
Clarification to Moot Proposition, Pg 4.
149
Sir D F Mulla, The Code of Civil Procedure, (BM Prasad and SK Sarvaria ed. 17th edn, Lexis Nexis 2007) 90.
150
(2006) SCC OnLine Mad 749.

PRAYER
Wherefore, in the light of the issues raised, arguments advanced, reasons given and authorities
cited, this Hon’ble Tribunal may be pleased to:
ON BEHALF OF CORPORATE DEBTOR/PROMOTERS
ARVIND CEMENT LIMITED:
Hold that application filed under §7 by Consortium is not sustainable.
Hold that payment made by ACL to TTCL is not an avoidable transaction.
MR. ARVIND KUMAR:

Hold that personal guarantee could not be invoked against Mr. Arvind Kumar.
ON BEHALF OF INSOLVENCY PROFESSIONAL
MISS POOJA PRAKASH:
Hold that RP was justified in rejecting the claim of GKCL as Financial Creditor.
Hold that RP was justified in making payment to TTCL out of interim finance.
Hold that application for recognition and cooperation of foreign proceedings is not sustainable.
Hold that RP was justified in rejecting claims of APL as Operational Creditor.
Hold that RP was justified in rejecting the revised Resolution Plan.
ON BEHALF OF OPERATIONAL CREDITOR
GK CONSTRUCTIONS LIMITED:
Hold that GKCL is Financial Creditor to ACL.
ON BEHALF OF FINANCIAL CREDITOR
RST BANK:
Hold that the payments made by ACL and RP of ACL to TTCL are avoidable.
Hold that personal guarantee should be invoked against Mr. Arvind Kumar.
ON BEHALF OF OTHER PARTIES
MR. KELVIN MURRAY (FOREIGN REPRESENTATIVE):
Hold that recognition and cooperation should be granted to foreign proceedings.
ARVIND POWER LIMITED:
Hold that APL is an Operational Creditor to ACL.
MR MAHESH KUMAR (RP OF ARVIND POWER LIMITED):
Hold that Mortgage created by APL in favour of ACL is an avoidable transaction.
Hold RP of APL being a necessary party should be impleaded.
JM CEMENTS LIMITED (RESOLUTION APPLICANT):
Hold that revised Resolution Plan should be accepted.
WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES S

TEAM CODE: 003
INSOLVENCY AND BANKRUPTCY MOOT COURT COMPETITION 2018
IN THE MATTER OF
ARVIND CEMENT LIMITED, CORPORATE DEBTOR
ANNEXURE/FORMS/REPORTS
BEFORE THE HON’BLE NATIONAL COMPANY LAW TRIBUNAL

AT HYDERABAD
COMPANY APPLICATION NO. (IB) _____ (Hyd.)/2018
MEMO OF THE PARTIES
IN THE MATTER OF
ARVIND CEMENT LIMITED…………………………………………….…..CORPORATE DEBTOR
On Behalf of
CONSORTIUM LED BY PEOPLE’S BANK…………………………….……. FINANCIAL CREDITOR
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES I

Part – I Filing of CIRP Application
FORM 1
(See sub-rule (1) of rule 4) of Application to Adjudicating Authority rules 2016
APPLICATION BY FINANCIAL CREDITOR TO INITIATE CORPORATE
INSOLVENCY RESOLUTION PROCESS UNDER THE CODE
(Under section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the
Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016)
Date:14th March 2018
To,
The National Company Law Tribunal,
Nagole, Hyderabad, 500068
From,
Consortium led by People’s Bank,
Senapati Bapat Marg, Lower Parel,
(West) Mumbai 400013
In the matter of Arvind Cement Limited
Subject: Application to initiate corporate insolvency resolution process in the matter of
Arvind Cement Limited under the Insolvency and Bankruptcy Code, 2016.
Madam /Sir,
Consortium led by People’s Bank, hereby submit this application to initiate a corporate
insolvency resolution process in the matter of Arvind Cement Limited. The details for the
purpose of this application are set out below:
PART I
PARTICULARS OF FINANCIAL CREDITOR –
A - People’s Bank
1. Name of Financial Creditor People’s Bank
2. Date of Incorporation of Financial Creditor 06.03.1965
3. Identification Number of Financial Creditor U65191KL1969PLC000676
4. Address of the Registered Office of Senapati Bapat Marg, Lower Parel
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES II

Financial Creditor (West) Mumbai 400013

Name and address of the person authorized Mr. Vikram Sahai (Legal Director, People’s
5.
to submit application on its behalf bank) T-20, Lawyer’s Enclave, Mumbai
Name and address of person resident in
Mr. Satyam Hazare Senapati Bapat Marg,
6. India authorized to accept the service of
Lower Parel (West) Mumbai 400013
process on its behalf
B – Bank of North India

1. Name of Financial Creditor Bank of North India
4. Address of the Registered Office of D- 341, Vikas Marg, (West) Mumbai 400013
Financial Creditor
5. Name and address of the person authorised Mr. Vikram Sahai (Legal Director, Bank of
to submit application on its behalf North India) T-20, Lawyer’s Enclave, Mumbai
6. Name and address of person resident in Mr. Shivam Prasad Vikas Marg, (West)
India authorized to accept the service of Mumbai 400013
C- PSP Bank –
1. Name of Financial Creditor PSP Bank
Identification Number of Financial
3. U65191KL1969PLC003482
Creditor
Address of the Registered Office of V – 500, Andheri Naga (West) Mumbai
4.
Financial Creditor 400013
Name and address of the person authorized Mr. Vikram Sahai (Legal Director, PSP Bank)
5.
to submit application on its behalf T-20, Lawyer’s Enclave, Mumbai
Name and address of person resident in
Mr. Aman Sharma Andheri Nagar, (West)
6. India authorized to accept the service of
Mumbai 400013
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES III

D- SCB Bank
1. Name of Financial Creditor SCB Bank
4. Address of the Registered Office of M – 531 Kashi Kung, (West) Delhi 400013
Financial Creditor
5. Name and address of the person authorized Mr. Vikram Sahai (Legal Director, SCB
to submit application on its behalf bank) T-20, Lawyer’s Enclave, Mumbai
6. Name and address of person resident in Mr. Rajesh Kumar M – 531 Kashi Kung,
India authorized to accept the service of (West) Delhi 400013
PART II
PARTICULARS OF CORPORATE DEBTOR
1 Name of Corporate Debtor Arvind Cement Limited (ACL)

2 Identification of Corporate Debtor L17110MH1973PLC019876
3 Date of Incorporation of Corporate Debtor 1993
Address of the Registered office of Green Valley, Banjara Hills, Hyderabad,
4
Corporate Debtor Telangana 500034
PART III
PARTICULARS OF PROPOSED INTERIM PROFESSIONAL
1 Name, address, email address and the Ms. Pooja Prakash, 22 Saket valley, New Delhi
registration no of proposed IRP E-MAIL – pooja.rp@ymail.com
Registration No. – IBBI/IPA/52-31/014
PART IV
PARTICULARS OF FINANCIAL DEBT
1. Total Amount of Debt granted 2000 Crore
2. Amount claimed to be in default and the 2160 Crore
date on which the default occurred
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES IV

PART V
Particulars of Financial Debt (Documents, Records, and evidence of default)
First Charge – On Land & Building of ACL; Second Charge – Plant & Machinery of ACL.
I, hereby certify that, to the best of my knowledge, Ms. Pooja Prakash, is fully qualified and
permitted to act as an insolvency professional in accordance with the Insolvency and
Bankruptcy Code, 2016 and the associated rules and regulations.
Consortium led by People Bank has paid the requisite fee for this application through NEFT.
Yours Sincerely,
VIKRAM SAHAI,
Legal Director,
T-20, Enclave, Mumbai
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES V


AT HYDERABAD
COMPANY APPLICATION NO. (IB) _____ (Hyd)/2018

IN THE MATTER OF
ARVIND CEMENT LIMITED……………………………………….….…….CORPORATE DEBTOR
On Behalf of
CONSORTIUM LED BY PEOPLE’S BANK………………………......……. FINANCIAL CREDITOR
VIKRAM SAHAI…………………………………………….………….…………APPLICANT
AFFIDAVIT IN SUPPORT OF INSOLVENCY APPLICATION
I, Vikram Sahai, Legal Director, People’s Bank, aged 48 Years, R/o Plot T-20, Lawyer’s
Enclave, Hyderabad, do hereby make an oath and state on solemnly affirmation as under -
1. That I am the Applicant and competent to file the present insolvency application before this
Hon’ble Tribunal and am well conversant with the facts of the case and competent to depose
the same on oath before this Hon’ble Tribunal.
2. That all contents of the insolvency application are true and correct to the best of my personal
knowledge and office record and nothing material has been concealed there from. The
deponent verifies the correctness, genuineness and authenticity of the said paragraphs.
3. That the documents Annexure 1 to 3 of application are true and correct photocopies of its
original.
Hyderabad
Dated: March,2018
VERIFICATION
I, Vikram Sahai, Legal Director, People’s Bank, do hereby verify that the contents of
paragraphs I to 3 are true to my personal knowledge and belief and that I have not suppressed
any material Facts.
Place: Hyderabad
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES VI

Annexure in support of the Application for Initiating CIRP

Annexure No. 1
Loan Agreement of 1994
The present loan agreement has been entered on 12th day of December 1994.
BETWEEN
Consortium of lender led by People’s Bank (hereinafter referred as the ‘Lender’) i.e.
People Bank, Bank of North India, PSP Bank, SCB Bank, which expression shall, unless it
be repugnant to the context or meaning thereof, be deemed to mean and include its
successors in interest and permitted assigns.
AND
Arvind Cement Ltd, a Company incorporated under the provisions of the Companies Act,
1956, established in the year 1993 having its registered office at Hyderabad, hereinafter
referred as “Borrower” which expression shall, unless it be repugnant to the context or
meaning thereof, be deemed to mean and include its successors in interest and permitted
assigns.
Lender of Consortium & Arvind Cement Ltd together for the purpose of this loan
agreement shall be referred as parties and individually as ‘Bank’ and ‘ACL’.
AND WHEREAS parties have mutually decided to enter into this loan agreement under
certain terms and conditions mentioned below.
TERMS AND CONDITIONS
A. The Borrower hereto, being in need of money, has requested the Consortium of Lender to
give him a loan of INR 2000 Crore for setting up and implementation of projects and its
operations.
B. The Consortium of lender has agreed to grant a loan of INR 2000 Crore but on the condition
that the said loan shall only be used for setting up and implementation of project of ACL
and the present loan agreement cannot be used for any other purpose.
C. The borrower shall pay this amount in installment & the borrower is required to pay the
interest over the present amount on a regular basis. On failure of which action may be
brought against the Borrower in the appropriate forum.
D. For the purpose of present loan agreement, the borrower shall create securities by way of
hypothecation of all its movable properties and mortgage of immovable properties
pertaining to Rajasthan Unit.
E. The terms and conditions of this Agreement are arrived at by the mutual consent of the
parties thereto.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES VII

AGREED, SIGNED AND DELIVERED

Consortium Led by People’s Bank
Through its authorized signatory
Arvind Cement Limited

ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES VIII

Annexure No. 2
Authorization Letter to people bank
A – Letter from PSP Bank to act on their behalf
From
PSP Bank,
V – 500, Andheri Naga (West) Mumbai
400013
To
People Bank,
Senapati Bapat Marg, Lower Parel
Date: 12.03.2018
Subject: Authorization letter to file CIRP
Madam/Sir,
This letter is to authorize People Bank, to act on my behalf, [PSP Bank] for filing CIRP
application against Arvind Cement Ltd having its registered office located at Hyderabad. Now
whatever order will be given by the Hon’ble Tribunal with respect to CIRP against ACL will
be binding on us.
Sincerely,
Mr. Vikram Sahai,
Legal Director,
PSP Bank
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES IX

B – Letter from Bank of North India to act on their behalf
From
Bank of North India,
Vikas Marg, Mumbai
400013
To
People Bank,
Date: 12.03.2018
Madam/Sir,
This letter is to authorize People Bank, to act on my behalf, [Bank of North India] for filing
CIRP application against Arvind Cement Ltd having its registered office located at Hyderabad.
Now whatever order will be given by the Hon’ble Tribunal with respect to CIRP against ACL
will be binding on us.
Sincerely,
Mr. Vikram Sahai,
Legal Director,
Bank of North India
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES X

C – Letter from SCB Bank to act on their behalf
From
SCB Bank
M – 531 Kashi Kung, (West) Delhi
400013
To
People Bank,
Date: 12.03.2018
Madam/Sir,
This letter is to authorize People Bank, to act on my behalf, [SCB Bank] for filing CIRP
application against Arvind Cement Ltd having its registered office located at Hyderabad. Now
whatever order will be given by the Hon’ble Tribunal with respect to CIRP against ACL will
be binding on us.
Sincerely,
Mr. Vikram Sahai,
Legal Director,
SCB Bank
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XI

Annexure No. 3
FORM-2
(See sub-rule (1) of rule 9)
Under rule 9 of the Insolvency and Bankruptcy (Application to Adjudicating Authority)
Rules, 2016
Written Communication By Proposed Interim Resolution Professional
06.03.2018
To,
The National Company Law Tribunal
Hyderabad, Telangana
From,
Ms. Pooja Prakash
22 Saket valley, New Delhi
Subject: Written communication in connection with an application to initiate corporate
insolvency resolution process in respect of Arvind Cement Limited.
Sir,
I, Pooja Prakash an insolvency professional registered with ICSI Insolvency Professionals
Agency having registration number IBBI/IPA/52--31/014 have been proposed as the interim
resolution professional by People’s Bank in connection with the proposed corporate
insolvency resolution process of Arvind Cement Limited.
In accordance with Rule 9 of the Insolvency and Bankruptcy (Application to Adjudicating
Authority) Rules, 2016, I hereby:
a. Agree to accept appointment as the interim resolution professional if an order admitting the
present application is passed;
b. State that the registration number allotted to me by the Board is IRP- 59843652 and that I
am currently qualified to practice as an insolvency professional;
c. Disclose that I am currently serving as an interim resolution professional/ resolution
professional / liquidator in (Case no. 52146325) proceedings;
d. Certify that there are no disciplinary proceedings pending against me with the Board or ICSI
Insolvency Professionals Agency;
e. Affirm that I am eligible to be appointed as a resolution professional in respect of the
Corporate Debtor in accordance with the provisions of the Insolvency and Bankruptcy
Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016;
f. Make the following disclosures in accordance with the code of conduct for insolvency
professionals as set out in the Insolvency and Bankruptcy Board of India (Insolvency
Professionals) Regulations, 2016.
POOJA PRAKASH
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XII


AT HYDERABAD
IN THE MATTER OF
ARVIND CEMENT LIMITED…………..………………………….…………CORPORATE DEBTOR
On Behalf of
CONSORTIUM LED BY PEOPLE’S BANK……………...…………….……...FINANCIAL CREDITOR
VIKRAM SAHAI……………...………………...…….………….…………………..APPLICANT
AFFIDAVIT IN SUPPORT OF INSOLVENCY APPLICATION
I, Vikram Sahai, Legal Director, People’s Bank, aged 48 Years, R/o Plot T-20, Lawyer’s
Enclave, Hyderabad, do hereby make an oath and state on solemnly affirmation as under –
1 That Applicant has paid the specified application fee as mentioned in schedule to the
Application to the Adjudicating Authority Rules, 2016.
2 That all contents of the documents attached as Annexure No.1 to Annexure No. 2, are true
and correct to the best of my personal knowledge and office record and nothing material has
been concealed there from. The deponent verifies the correctness, genuineness and
authenticity of the said paragraphs.
VERIFICATION
I, Vikram Sahai, Legal Director, People’s Bank, do hereby verify that the contents of
paragraphs 1 to 3 are true to my personal knowledge and belief and that I have not
suppressed any material Facts.
Place: Hyderabad
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XIII

PART II - Acceptance of Insolvency Proceeding/Procedure conducted by

IRP/RP
FORM A
PUBLIC ANNOUNCEMENT
(Under Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency

Resolution Process for Corporate Persons) Regulations, 2016)
FOR THE ATTENTION OF THE CREDITORS OF ARVIND CEMENT LIMITED
RELEVANT PARTICULARS
1. Name of Corporate Debtor Arvind Cement Limited (ACL)
2. Identification of Corporate Debtor L17110MH1973PLC019876
3. Date of Incorporation of Corporate Debtor 1993
Registered with Registrar of Companies
Authority under which Corporate Debtor is
4. in accordance with provisions of the
Registered
Companies Act, 1956
Green Valley, Banjara Hills,
Address of the registered office of corporate
5. Hyderabad,
Debtor
Telangana 500034
Insolvency commencement date in respect of
6. 30.03.2018
Corporate Debtor
Estimated date of closure of Insolvency
7. 25.10.2018
resolution process
Ms. Pooja Prakash, New Valley, Saket,
Name, address, and the registration number
8. 22/11, New Delhi. 110017
of the interim resolution
Registration No. – IBBI/IPA/52-31/014
9. Last Date for Submission of Claims 13.04.2018
Notice is hereby given that the National Company Law Tribunal has ordered the
commencement of a Corporate insolvency resolution process against the Arvind Cement
Limited on 30.03.2018.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XIV

The creditors of Arvind Cement Limited, are hereby called upon to submit a proof of their
claims on or before 13.04.18 to the interim resolution professional at the address mentioned
against item 8.
“The Financial Creditors shall submit their proof of claims by electronic means only. All other
creditors may submit the proof of claims in person, by post or by electronic means.”
Submission of false or misleading proofs of claim shall attract penalties

Ms. Pooja Prakash
30.03.2018
New Valley, Saket, 22/11
New Delhi. 110017
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XV

Proof of claim by Financial Creditor
1 - Claim by People’s Bank (Form C)

11.04.2018
To
Interim Resolution Professional,
Ms. Pooja Prakash
New Valley, Saket, 22/11,
New Delhi. (110017)
From
People’s Bank
Subject: Submission of proof of claim.
Madam/Sir,
People’s Bank hereby submits this proof of claim in respect of corporate insolvency
Resolution Process of Arvind Cement Ltd. The details for the same are set out below:
PARTICULARS
1. Name of Financial Creditor People’s Bank
2. Identification number of Financial Creditors L65190GJ1994PLC02232
3. Address of Financial Creditor Senapati Bapat Marg, Mumbai
4. Total amount of claim INR 800 Crores
5. Details of documents by reference to which Loan agreement which was
the debt can be substantiated entered in 1994
6. Details of how and when debt incurred Financial assistance was provided by a
consortium which include People Bank,
PSP Bank, SCB Bank and Bank of North
India in the year 1993 for implementation of
projects.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XVI

7. Details of any mutual credits, mutual debts or N/A

other mutual dealings between the corporate
Debtor and the creditor which may be set-off
against the claim
8. Details of the bank account to which the Account Name- Loan Repayment A/c
amount of the claim or any part thereof can be Account No –46910100009980
transferred pursuant to a Resolution Plan Bank Name – SST Bank
9. Details of any security held, the value of the The Loan Agreement created charge on the
security, and the date it was given following properties –
First Charge –
Land and Building of ACL in
Rajasthan.
Second Charge –
Plant and Machinery of ACL.
10. List of documents attached to this proof of Loan Agreement between ACL and ALSL
claim to prove the existence and non-payment
of claim due to the Financial Creditor
VIKRAM SAHAI
Managing Legal Director
Address - T-20, Lawyer’s Enclave, New Delhi
AFFIDAVIT
I, Vikram Sahai, currently Managing Director of People’s Bank, R/O, T-20, Lawyer’s
Enclave, New Delhi do solemnly affirm, and state as follows:
1. Arvind Cement Ltd., the Corporate Debtor was, at the insolvency commencement date,
being the 30th day of March 2018, justly and truly indebted to me in the sum of Eight
Hundred Crore Rupees (Rs. 800 Crore).
2. In respect of my claim of the said sum or any part thereof, I have relied on the documents
specified below: Loan Agreement entered in year 1994.
3. The said documents are true, valid and genuine to the best of my knowledge, information
and belief. Solemnly, affirmed at Hyderabad on 11th day of April 2018
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XVII

4. In respect of the said sum or any part thereof I have not nor has any person by my order to
my knowledge or belief for my use had or receive any manner of satisfaction or security
save and except the following.
Solemnly, affirmed at Hyderabad on 11th Day of April 2018.

Before me,
Notary/Oath Commissioner
Deponent's Signature
VERIFICATION
I, the Vikram Sahai hereinabove, do hereby verify and affirm that the contents of paragraph
1 to 4 of this affidavit is true and correct to my knowledge and belief and no material facts
have been concealed therefrom. Verified at Hyderabad on 11th day of April 2018.
Deponent’s Signature
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XVIII

Annexure in support of Proof of Claim of People Bank

Annexure No. 1
LOAN AGREEMENT
BETWEEN
AND
assigns.
operations.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XIX

parties thereto.


ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XX

2 – Claims by Bank of North India (FORM C)
Under Regulation 8 of the Insolvency and Bankruptcy Board of India (Insolvency

10.04.2018
To
Ms. Pooja Prakash
New Delhi
From
Bank of North India
D- 341, Vikas Marg, (West) Mumbai - 400013
Madam/Sir,
Bank of North India hereby submits this proof of claim in respect of the corporate insolvency
resolution process in the case of Arvind Cement Limited. The details for the same are set out
below:
1. Name of Financial Creditor Bank of North India

2. Identification number of Financial Creditors U65191KL1969PLC000878
3. Address of Financial Creditor D-341 Vikas Marg, Mumbai
4. Total amount of claim INR 555 Crore
5. Details of documents by reference to which Loan Agreement entered in year
The Debt can be substantiated 1993.
6. Details of how and when debt incurred Financial assistance was provided
by
a consortium which include People
Bank, PSP Bank, SCB Bank and
Bank of North India in the year 1993
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXI

for implementation of projects.

against the claim
8. Details of the Bank Account to which the Account No – 39070100099998288
amount of the Claim or any part thereof can
be transferred pursuant to a Resolution Plan
9. Details of any security held, the value of the The following charge are Created at
security, and the date it was given the time loan was Granted –
First Charge –
Charge on Land and Building of
ACL of Rajasthan Unit.
Second Charge –
Plant & Machinery of ACL
10. list of documents attached to this proof of Loan Agreement entered in the year
claim in order to prove the existence and non- 1994.
payment of claim due to the Financial Creditor
VIKRAM SAHAI
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXII

AFFIDAVIT
specified below: N/A
and belief. Solemnly, affirmed at Ahmadabad on 11th day of April 2018

Before me,
Deponent's signature
VERIFICATION
Deponent Signature
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXIII

Annexure in support of Proof of Claim of Bank of North India
Annexure No. 1
LOAN AGREEMENT
BETWEEN
AND
assigns.
operations.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXIV

parties thereto.


ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXV

3 – Claim by PSP Bank (FORM C)

10.04.2018
To
Ms. Pooja Prakash
New Delhi
From
PSP Bank
V – 500, Andheri Nagar
(West) Mumbai 400013)
Madam/Sir,
PSP Bank hereby submits this proof of claim in respect of the corporate insolvency
resolution process in the case of Arvind Cement Limited. The details for the same are set
out below:
1. Name of Financial Creditor PSP Bank

2. Identification number of Financial Creditors U65191KL1969PLC003482
V – 500, Andheri Nagar
3. Address of Financial Creditor
Details of documents by reference to
5. Loan Agreement entered in year 1994.
which the debt can be substantiated
6. Details of how and when debt incurred Financial assistance was provided by a
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXVI

consortium which include People Bank, PSP

Bank, SCB Bank and Bank of North India in
the year 1994 for implementation of projects.
Details of any mutual credits, mutual debts or
7. N/A
against the claim
Details of the Bank Account to which the
Account No –
8. amount of the Claim or any part thereof can
39070100099998288
The following charge are Created at the time

loan was Granted –
First Charge –
Details of any security held, the value of the
9. Charge on Land and Building of ACL of
security, and the date it was given
Rajasthan Unit.
Second Charge –
List of documents attached to this proof of

10. claim in order to prove the existence and non- Loan Agreement entered in the year 1994.
VIKRAM SAHAI
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXVII

AFFIDAVIT

Before me,
VERIFICATION
Deponent Signature
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXVIII

Annexure in support of Proof of Claim of PSP Bank

Annexure No. 1
LOAN AGREEMENT
BETWEEN
AND
assigns.
operations.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXIX

parties thereto.


ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXX

4 – Claim by SCB Bank (FORM C)

10.04.2018
To
Ms. Pooja Prakash
New Delhi
From
SCB Bank
M – 531 Kashi Kunj,
(West) Delhi 400013
Madam/Sir,
SCB Bank hereby submits this proof of claim in respect of the corporate insolvency
out below:
1. Name of Financial Creditor SCB Bank

M – 531 Kashi Kung, (West) Delhi
400013
Details of documents by reference to Loan Agreement entered in
5.
which the debt can be substantiated year 1994.
Financial assistance was provided by
6. Details of how and when debt incurred
a consortium which include People
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXXI

Bank, PSP Bank, SCB Bank and

Bank of North India in the year 1993
for implementation of projects.
Details of any mutual credits, mutual debts or
7. N/A
against the claim
8. amount of the Claim or any part thereof can Account No – 39070100099998288
The following charge are Created at the

time loan was Granted –
First Charge –
9. Charge on Land and Building of ACL
of Rajasthan Unit.
Second Charge –
List of documents attached to this proof of

Loan Agreement entered in
10. claim in order to prove the existence and non-
the year 1994.
VIKRAM SAHAI
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXXII

AFFIDAVIT

Before me,
VERIFICATION
Deponent Signature
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXXIII

Annexure in support of Proof of Claim of SCB Bank

Annexure No. 1
LOAN AGREEMENT
BETWEEN
AND
assigns.
operations.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXXIV

parties thereto.

ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXXV

5 – Claim by RST Bank (FORM C)

10.04.2018
To
Ms. Pooja Prakash
New Delhi
From
RST Bank
2/2, Canal Colony, Havlok Road
Lucknow, 226007
Madam/Sir,
RST Bank hereby submits this proof of claim in respect of the corporate insolvency
out below:
1. Name of Financial Creditor RST Bank

2/2, Canal Colony, Havlok Road,
Lucknow, 226007
Details of documents by reference to Credit Facility Agreement of year
5.
which the debt can be substantiated 2005.
In year 2005 ACL took a loan from
6. Details of how and when debt incurred RST Bank as working capital
facility.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXXVI


against the claim
8. amount of the Claim or any part thereof can Account No – 47000100567358
The following charge are Created at
the time loan was Granted –
First Charge –
Second Charge –
9. Land and building of ACL,
Rajasthan Unit. Further Mr. Arvind
Kumar also provided Personal
Guarantee to secure the Loan of
RST Bank.
Credit facility agreement of

list of documents attached to this proof of year 2005.
10. claim in order to prove the existence and non- Personal Guarantee Agreement
payment of claim due to the Financial Creditor Between RST Bank and Mr. Arvind
Kumar
ARVIND KHENDALWAL
Managing Director
Address - 2/2 Canal Colony
Havlok Road, Lucknow (226007)
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXXVII

AFFIDAVIT
I, Arvind Kehriwal, currently Managing Director of RST Bank, R/O 2/2 Canal Colony,
Havlok Road, Lucknow (226007) do solemnly affirm and state as follows:
being the 30th day of March 2018, justly and truly indebted to me in the sum of Ninety
Crore Rupees (Rs. 90 Crore).
specified below.
and belief. Solemnly, affirmed at Hyderabad on 12th day of April 2018.
save and except the following
Before me,
VERIFICATION
I, the Deponent hereinabove, do hereby verify and affirm that the contents of paragraph 1
to 3 of this affidavit are true and correct to my knowledge and belief and no material
factshave been concealed therefrom. Verified at Lucknow on 12th day of April 2018
Arvind Khandelwal
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXXVIII

Annexure No. 1
Annexure in support of Proof of Claim of SCB Bank
CREDIT FACILITY AGREEMENT

The present loan agreement has been entered on 20th day of August 2005.
BETWEEN
RST Bank (hereinafter referred as the ‘Lender’) which expression shall, unless it be
repugnant to the context or meaning thereof, be deemed to mean and include its successors
in interest and permitted assigns.
AND
1956, established in the year 2003 having its registered office at 31 Tagore Colony, Delhi
110091, hereinafter referred as “Borrower” which expression shall, unless it be repugnant
to the context or meaning thereof, be deemed to mean and include its successors in interest
and permitted assigns.
RST Bank & Arvind Cement Ltd together for the purpose of this loan agreement shall be
referred as parties and individually as ‘Bank’ and ‘ACL’.
give him a loan of INR 200 Crore for the purpose of working capital.
B. The lender has agreed to grant a loan of INR 200 Crore but on the condition that the said
loan shall only be used for working capital purpose & the present loan amount cannot be
used for any other purpose.
E. The lender shall only grant the present loan amount on condition that the promoter of the
borrower shall provide a personal guarantee to the lender.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XXXIX

F. The terms and conditions of this Agreement are arrived at by the mutual consent of the
parties hereto.
RST Bank

ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XL

Annexure No. 2
GUARANTEE AGREEMENT
(PERSONAL GUARANTEE)
The present Personal Guarantee is executed at New Delhi on 20th day of October 2005
(present guarantee)
BY
Mr. Arvind Kumar (hereinafter referred to as Guarantor) whose address & other details
are provided under Schedule I thereto
IN FAVOUR OF
RST Bank (hereinafter referred as Creditors) whose address & other details are provided
under Schedule I thereto.
Whereas
(1) Pursuant to the loan agreement entered between (a) Arvind Cement Ltd. (Hereinafter
referred as borrower) more particularly mentioned in Schedule 1 & the Creditor for the
Loan more particularly mentioned in Schedule I & at the request of the borrower, the Lender
has agreed to lend the loan to borrower and the borrower have agreed to borrow the loan
form from lender on terms & condition contained in Loan Documents.
(2)One of the Condition for the Lender having agreed to grant the said loan to the borrower
was that the Guarantor shall execute in favour of Lender an unconditional and irrevocable
continuing guarantee being these presents.
NOW THIS AGREEMENT OF GUARANTEE WITNESS AS FOLLOWS –
For good and valuable consideration being lender providing the loan to the borrower under
the Loan Agreement (the receipt and sufficiency of which are acknowledged) the Guarantor
irrevocably and unconditionally:
(i) Guarantees to the Lender punctual performance by the borrower of all the borrower
obligations under the loan document and in the event borrower failing to perform any of its
obligations under the Loan Documents, the Guarantor shall, on first demand by the Lender
(such notice to be conclusive proof of the default) and without any demur, contest or
delay, shall pay to the Lender the Guarantee amount as stipulated in Schedule I of this
agreement (the Guarantee Amount) and in addition thereto shall pay interest and other
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XLI

amount that become due and payable by the borrower to the Lender under the Loan
document and any part thereof.
i. Accepts and acknowledges that the obligations hereunder are joint and several and
independent of the obligations of the Borrower and a separate action or actions may be
brought against the Guarantor alone or jointly with the Borrower.
ii. The Guarantors agree and understand that the Guarantors shall not be entitled to delay the
payment of the guaranteed amounts for any controversy, question or dispute which may
arise between the Lender and Borrower(s) as regard to the terms and conditions of the said
Loan Agreement or the liability and/or payment of the amounts due thereunder.
iii. The Guarantor further agree and undertake to pay to the Lender all legal costs occasioned
to Lender by reason of omission, default in repayment by the Borrower(s) and in case of
legal costs, also the costs of enforcement or attempted enforcement of any security in
favour of the Lender against the loan or the costs which may incur by the Lender being
joined in any proceeding either with or without others in connection with any such security
or any proceeds thereof.
IN WITNESS WHEREOF this Guarantee Deed has been executed by the Guarantors at the
place and on the date first above written.
SCHEDULE I to the Present Personal Guarantee Agreement
S. No Items Information to be inserted
1- Date of Agreement 20th October 2005
2- Guarantor Details Name – Mr. Arvind Kumar
Age – 50 Years
Constitution: Individual
Address: 25 Saket Vihar, New Delhi
3- Borrower Details Name – Arvind Cement Ltd. (ACL)
Constitution – Private Ltd. Company
Registered Office Address – 54 Nagar Colony, Hyderabad
Other Corporate Office – Situated at New Delhi and Bombay
4- Loan Agreement Loan agreement Dated 20 October 2005 entered between
Arvind Cement Limited (Borrower) & RST Bank (Lender)
5- Loan Principal Amount INR 200 Crore
6- Guaranteed Amount INR 200 Crore
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XLII

7- Notice Any notice to the Guarantor for any matter shall be sent to his
Registered Office.
8- Place of execution New Delhi
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XLIII

PROOF OF CLAIM BY OPERATIONAL CREDITORS EXCEPT WORKMEN AND EMPLOYEES
1 – Claim by GKCL (FORM B)

10.04.2018
To
Interim Resolution Professional
Ms. Pooja Prakash
New Valley, Saket, 22/11
From
GKCL,
209-210 Akbar Road,
Lucknow (India)
Madam/Sir,
GKCL, hereby submits this proof of claim in respect of the corporate insolvency resolution
Process in the case of Arvind Cement Limited. The details for the same are set out below:
Particulars
GK Constructions Limited
1. Name of Operational Creditor
(GKCL)
2. Identification number of Operational Creditors U65190GJ2007PLC021012
209-210, Akbar Road,
3. Address of Operational Creditor
Lucknow (India)
Details of documents by reference to which the debt Purchase Agreement between
5.
can be substantiated ACL and GKCL
Details of any dispute as well as the record of
6. N/A
pendency or order of suit or arbitration proceedings
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XLIV

The debt was incurred in year

7. Details of how and when debt incurred 2010 by a purchase agreement
between ACL and GKCL.
Details of any mutual credits, mutual debts or other
8. mutual dealings between the Corporate Debtor and N/A
the creditor which may be set-off against the claim
Details of any retention of title arrangements in
9. respect to goods or properties to which the claim N/A
refers
Account Name- Loan
Details of the bank account to which the amount of Repayment A/c
10. the claim or any part thereof can be transferred Account No. –
pursuant to a Resolution Plan 4700010009200
Bank Name – Dene Bank
List of documents attached to this proof of claim in Purchase Agreement between
11. order to prove the existence and non-payment of ACL and GKCL entered in
claim due to the Operational Creditor the year 2010.
Signature
GKCL LIMITED
209-210, Akbar Road,
Lucknow (India) – 226001
AFFIDAVIT
I, GKCL, currently located at 209-210, Akbar Road, Lucknow (India) – 226001, do solemnly
affirm and state as follows:
1) Arvind Cement Ltd., the Corporate Debtor was, at the insolvency commencement date,
being the 30th day of April 2018, justly and truly indebted to me in the sum of Rs. Two
Hundred and Fifty Crores
2) In respect of my claim of the said sum or any part thereof, I have relied on the documents
specified below: Purchase Agreement
3) The said documents are true, valid and genuine to the best of my knowledge, information
and belief.
4) In respect of the said sum or any part thereof I have not nor has any person by my order to
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XLV

save and except the following
Solemnly, affirmed at Hyderabad on 10th day of April 2018.
Before me,
Notary / Oath Commissioner
VERIFICATION
I, the Deponent hereinabove, do hereby verify and affirm that the contents of paragraph 1 to4
of this affidavit are true and correct to my knowledge and belief and no material facts have
been concealed therefrom. Verified at Hyderabad on 10th day of April 2018.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XLVI

Annexure in support of Proof of Claim of GKCL

Annexure No. 1
AGREEMENT FOR CONSTRUCTION
This agreement is made on 05.07.2010
BETWEEN GK Construction Limited whose address is Akbar Road, Lucknow India here
in referred as “Contractor”,
AND the Property Owner Arvind Cement Limited incorporated under the Companies Act,
1956 having its registered office at registered office at 31 Tagore Colony, Delhi 110091,
referred to as the “Owner”
A. Agreement
The contractor agrees to perform certain construction, alteration or repair work (referred to
as the “work”) in accordance with this agreement. All work will be done in a good, sound
and workmanlike manner.
B. Work
The Work includes construction of 85 storage facilities whose ownership rights over these
storage facilities vested in Arvind Cement Limited immediately upon the completion of
construction
C. Price
The agreed upon price Rs. 500 crore/- ( Rupess Five Hundred Crore only). This amount
will be paid in the installment with the interest over a period of 10 years.
D. Materials
The Contractor will provide the materials, supplies, equipment, services and labor necessary
for the complete performance of this agreement. Unless otherwise agreed, all materials will
be new and of good quality.
E. Compliance with Laws
The Contractor will comply with all applicable Federal, State and local laws regarding work,
materials and the safety of persons or property. The Owner will not be responsible for any
loss or damage to the work or any property of the Contractor.
F. No Oral Changes
This Agreement can only be changed by an agreement in writing signed by both the Owner
and the Contractor. No variations, alterations, deviations, deletions or extra work can be
made unless both the Owner and the Contractor specifically agree in writing.
G. Failure to Complete Work
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XLVII

The Contractor must properly and diligently complete the work provided for in this
Agreement. Otherwise, the Owner may notify the Contractor in writing that he must begin
work within three days or the Owner will complete the work by other means. Any additional
cost to complete this work will be charged to the Contractor.
H. Care of Property
The Contractor will protect the work, materials, property and adjacent property from
damage or loss. The Contractor will also take proper precautions for the safety of the public.
The Property will be kept free of waste, rubbish and surplus materials. The Contractor will
leave the Property “broom clean” before being entitled to the final payment under this
Agreement. The Contractor will also pay for, repair or replace any damage or loss caused
by the Contractor’s failure to perform this Agreement.
I. Contractor’s Continuing Liability
The Contractor will be liable for defective, faulty or improper materials or workmanship.
Upon written demand, the Contractor will immediately remedy all defects, faults or
omissions and complete all unfinished work. The Contractor’s obligations will not be
affected by the issuance of an Architect’s Certificate.
J. Notices
All notices under this Agreement must be in writing. The notices must be delivered
personally or mailed by certified mail, return receipt requested, to the other party at the
address written in this Agreement or to that party’s attorney.
K. The terms and conditions of this Agreement are arrived at by the mutual consent of the
parties hereto.
GK CONSTRUCTION LIMITED
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XLVIII

2 – GKL and Other Dealers (FORM B)

10.04.2018
To
Ms. Pooja Prakash
New Delhi
From
GKL and other dealers
Naka Hindola, Alwar, Rajasthan, 301002
Madam/Sir,
GKL and other dealers, hereby submits this proof of claim in respect of the corporate
insolvency resolution process in the case of Arvind Cement Limited. The details for the same
are set out below:
Particulars
1. Name of Operational Creditor GKL and other dealers
2. Identification number of Operational Creditors U50102MH2006PLC158715
Naka Hindola, Alwar,
Rajasthan, 301002
4. Total amount of claim INR 2.15 Crores
Details of documents by reference to which the debt
5. N/A
can be substantiated
6. N/A
7. Details of how and when debt incurred N/A
8. N/A
mutual dealings between the Corporate Debtor and
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XLIX


refers
Account Name- Loan
Details of the bank account to which the amount of
Repayment A/c
10. the claim or any part thereof can be transferred
Account No. – 470507001975
pursuant to a Resolution Plan
Bank Name – Dene Bank
List of documents attached to this proof of claim in
11. order to prove the existence and non-payment of N/A
claim due to the Operational Creditor
Signature
GKL and other Dealers
Naka Hindola, Alwar, Rajasthan, 301001
AFFIDAVIT
I, GKL and other dealers, currently residing at: Naka Hindola, Alwar, Rajasthan, 301002,
do solemnly affirm and state as follows:
Crore fifteen Lakh.
and belief.
Before me,
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES L

VERIFICATION
to 4 of this affidavit are true and correct to my knowledge and belief and no material facts
have been concealed therefrom. Verified at Alwar on 10th day of April 2018.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LI

3 – Imperium Carriers Ltd, FORM B

10.04.2018
To
Ms. Pooja Prakash
New Delhi
From
Imperium Carriers Limited
Defence Colony, Telibagh,
Rajasthan, 301001
Madam/Sir,
Imperium Carriers Limited (ICL), hereby submits this proof of claim in respect of the
corporate insolvency resolution process in the case of Arvind Cement Limited. The details
for the same are set out below:
Particulars
1. Name of Operational Creditor Imperium Carriers Limited
Defence Colony, Telibagh,
Rajasthan, 301001
4. Total amount of claim INR 0.35 Crore
5. N/A
6. N/A
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LII


refers
Account Name- Loan
Bank Name – Kodak Bank
Signature
Imperium Carriers Ltd
Defence Colony,
Telibagh, Rajasthan 301001
AFFIDAVIT
I, Imperium Carriers Ltd., currently located at: Defence Colony, Telibagh, Rajasthan
301001, do solemnly affirm and state as follows:
being the 30th day of April 2018, justly and truly indebted to me in the sum of Rs. 0.35
Crores.
and belief.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LIII

Before me,
Imperium Carriers Ltd. Deponent’s Signature
VERIFICATION
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LIV

4 – Raw Material Suppliers (FORM B)

10.04.2018
To
Ms. Pooja Prakash
New Delhi
From
Raw Material Suppliers
Agrawal Market, Alwar, Rajasthan 301002
Madam/Sir,
Raw Material Suppliers hereby submits this proof of claim in respect of the corporate
are set out below:
Particulars
1. Name of Operational Creditor Raw Material Supplier
Agrawal Market, Alwar,
Rajasthan 301001
4. Total amount of claim INR 2 Crore
5. N/A
6. N/A
8. Details of any mutual credits, mutual debts or other N/A
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LV


refers
Account Name- Loan
Bank Name – Kalyani Bank
Signature
Raw Material Suppliers
Agrawal Market, Alwar,
Rajasthan 301001
AFFIDAVIT
I, Manish Joshi, currently located at: Agrawal Market, Alwar, Rajasthan 301002, do solemnly
Crores.
and belief. Solemnly, affirmed at Alwar, Rajasthan on 15th day of April 2018.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LVI

Before me,
VERIFICATION
I, the Deponent hereinabove, do hereby verify and affirm that the contents of paragraph 1 to 4
of this affidavit are true and correct to my knowledge and belief and no material facts have
been concealed therefrom. Verified at Hyderabad on 10th day of April 2018.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LVII

5– XYL Securities Agency (FORM B)

10.04.2018
To
Ms. Pooja Prakash
New Delhi
From
XYL Security Agency
K-90, Mahabali, Alwar, Rajasthan (301001)
Madam/Sir,
XYL Security Agency, hereby submits this proof of claim in respect of the corporate
are set out below:
Particulars
1. Name of Operational Creditor XYL Securities Agency
K-90, Mahabali, Alwar,
Rajasthan (301001)
5. N/A
6. N/A
8. N/A
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LVIII


refers
Account Name- Loan
Bank Name – Axel Bank
Signature
SHARMAN JOSHI
General Manager
K-90, Mahabali,
Alwar, Rajasthan (302424)
AFFIDAVIT
XYL Security agency residing at: K-90, Mahabali, Alwar, Rajasthan (302424), do solemnly
Crores.
and belief. Solemnly, affirmed at Jaipur, Rajasthan on 16th day of April 2018.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LIX

Before me,
VERIFICATION
I, Sharman Joshi do hereby verify and affirm that the contents of paragraph 1 to 4 of this
affidavit are true and correct to my knowledge and belief and no material facts have been
concealed therefrom. Verified at Hyderabad on 16th day of April 2018.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LX

6– T&T Construction Ltd (FORM B)

10.04.2018
To
Ms. Pooja Prakash
New Delhi
From
TTCL
Cine Plaza C-89, Alwar,
Rajasthan (302028)
Madam/Sir,
TTCL, hereby submits this proof of claim in respect of the corporate insolvency resolution
process in the case of Arvind Cement Limited. The details for the same are set out below:
Particulars
1. Name of Operational Creditor TTCL
2. Identification number of Operational Creditors L50102MH2996PLC158718
Cine Plaza C-89, Alwar,
Rajasthan (302028)
5. N/A
6. N/A
8. N/A
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXI


refers
Account Name- Loan
Bank Name – Axel Bank
Signature
TTCL
Address: Cine Plaza C-89,
Alwar, Rajasthan (302028)
AFFIDAVIT
TTCL residing at: Cine Plaza C-89, Alwar, Rajasthan (302028), do solemnly affirm and state
as follows:
Crores.
and belief. Solemnly, affirmed at Alwar, Rajasthan on 20th day of April 2018.
Before me,
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXII

VERIFICATION
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXIII

7 – Electricity Discom in Rajasthan (FORM B)
(Under Regulation 7 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution
Process for Corporate Persons) Regulations, 2016)
10.04.2018
To
Resolution Professional,
Ms. Pooja Prakash
New Delhi
From
Electricity Discom in Rajasthan
T-50 Mayur Gate, Karan,
Bikaner, Rajasthan
Madam/Sir,
Electricity Discom in Rajasthan, hereby submits this proof of claim in respect of the
corporate insolvency resolution process in the case of Arvind Cement Limited. The details for
the same are set out below:
Particulars
Electricity Discom in
1. Name of Operational Creditor
Rajasthan
2. Identification number of Operational Creditors L50102MH2996PLC158718
T-50 Mayur Gate, Karan,
Bikaner, Rajasthan
5. N/A
6. N/A
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXIV


refers
Account Name- Loan
Bank Name – SBI Bank
Signature
Manish Rastogi
Authorized Representative
AFFIDAVIT
Electricity Discom in Rajasthan do solemnly affirm and state as follows:
being the 30th day of April 2018, justly and truly indebted to me in the sum of Rs.1.15
crores.
and belief.
Before me,
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXV


VERIFICATION
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXVI

PROOF OF CLAIM BY A WORKMAN OR AN EMPLOYEE (FORM D)
(Under Regulation 9 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution
Process for Corporate Persons) Regulations, 2016)
10.04.2018
To
Ms. Pooja Prakash
New Delhi
From
Employees and Workmen of ACL
Madam/Sir,
We hereby submit this proof of claim in respect of the corporate insolvency resolution
process in the case of Arvind Cement Limited. The details for the same are set out below:
Particulars
Pan Number, Passport, the identity card issued by the
1. Election Commission of India or Aadhar Card of N/A
workman/ employee
Address of the workman/employee for 521, Vijay Nagar, Udaipur, Rajasthan
2.
correspondence
4. N/A
5. N/A
7. N/A
mutual dealings between the Corporate Debtor and the
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXVII

creditor which may be set-off against the claim

refers
Details of the bank account to which the amount of Account No. –
9. the claim or any part thereof can be transferred 4700015241563264
pursuant to a Resolution Plan Bank Name – SBI Bank
Signature
VIJAY KUMAR
AFFIDAVIT
I Vijay Kumar solemnly affirm, and state as follows:
being the 30th day of April 2018, justly and truly indebted to me in the sum of Rs.1.18
scrores.
and belief.
Before me,
VERIFICATION
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXVIII

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

AT HYDERABAD
IN THE MATTER OF
ARVIND CEMENT LIMITED………………………………………….……..CORPORATE DEBTOR
On Behalf of
CONSORTIUM LED BY PEOPLE’S BANK………………………………….. FINANCIAL CREDITOR
List of Creditor prepared by the IRP
Under regulation 13 of the insolvency resolution process for corporate person, Regulation
2016. The IRP (Ms. Pooja Prakash has prepared the following list of creditors who have
submitted their claim and outstanding amount due to them.
Particulars Principal amount (In INR Crores) Outstanding Amount

People’s Bank 875 800
Bank of North India 625 555
SCB Bank 625 555
PSP Bank 375 250
RST Bank 200 90
GKCL 500 250
GKL and Other 2 2.15
Dealers
ICL 0.15 0.35
Raw Material 1.5 2
Suppliers
Electricity Discom 1 1.15
in Rajasthan
Employees and 1.25 1.85
Workmen of ACL
XYL Security 0.25 0.30
Agency
TTCL 0.5 0.6
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXIX


AT HYDERABAD

IN THE MATTER OF
On Behalf of
Report Of Minutes Of Coc Meeting Held On 27.04.2018

MEETING HELD AT:
A meeting of Arvind Cement Limited was held at A-12, Niraj Vihar, New Delhi on April
27, 2018.
ATTENDEES:
• People’s Bank
• Bank of North India
• SCB Bank
• PSP Bank
• RST Bank
BUSINESS PROPOSED TO BE TRANSACTED IN THE MEETING:

• Chairman (Interim Professional) to preside over the Meeting
• Ascertainment of quorum for the meeting
• Consideration of the list of Creditors
• Appointment of Resolution Professional
• Finalizing list of creditors
• Proposal to raise Interim finance of INR 5 Crore
BUSINESS TRANSACTED IN THE MEETING:
AGENDA: 1 Chairman (Interim Professional) to preside over the Meeting
Proposed by: Ms. Pooja Prakash (IRP)
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXX

Seconded and agreed by: The members of the Committee unanimously accepted, Ms. Pooja
Prakash (IRP) the IRP to preside over the meeting as the Chairman.
Agenda 2: Ascertainment of quorum for the meeting
Ascertained by: Chairman
Agenda 3: Consideration of the list of Creditors
Decision made: The members unanimously accepted the list prepared by the IRP after
receiving and verifying all the claims and authorized the IRP to present the list before the
Tribunal.
Agenda 4: Appointment of Resolution Professional
Proposed by: Chairman

The IRP be continued as Resolution Professional.
Seconded and agreed by: The members of the Committee accepted, Ms. Pooja Prakash will
continue as Resolution Professional.
Agenda 5: Proposal to raise Interim finance of INR 5 Crore

Proposed by: Resolution Professional
Seconded and agreed by: Consortium led by People’s Bank
Objected by: RST Bank
That the proposal for interim finance, to the extent that payment was proposed to be made
to TTCL, was unnecessary and contrary to the provisions of law. RST Bank argued that
any interim finance raised by the RP shall be used for conducting the insolvency resolution
process and for maintaining the Debtor as a going concern, but it cannot be used for
building new assets during CIRP. RST Bank also alleged that the payment of INR 20 lakhs
to TTCL is an avoidable transaction under the law and that such transaction was carried
out with intent to defraud the creditors of ACL.
Decided: Out of the interim finance amount of INR 5 crores, RP of ACL set aside INR 2.5
crores for running operations at the manufacturing unit, which included money for
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXI

purchasing power from APL. The remaining funds were disbursed amongst TTCL, workers
and employees of ACL and remuneration to valuers, RP, auditors and other process costs
Next Meeting:
The RP is authorized to serve notice for the next meeting as and when required or when
any requisition is received from the members of committee to conduct such meeting.
INTERIM RESOLUTION PROFESSIONAL

(Ms. Pooja Prakash)
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXII

REPORT OF 7th MINUTES OF COC MEETING HELD ON 27.08.2018
MEETING HELD AT:

A meeting of Arvind Cement Limited was held at A-12, Niraj Vihar, New Delhi on August
27, 2018.
ATTENDEES:
• People’s Bank
• Bank of North India
• SCB Bank
• PSP Bank
• RST Bank
BUSINESS PROPOSED TO BE TRANSACTED IN THE MEETING:

• Extension of Corporate Insolvency Resolution Process by 90 days.
BUSINESS TRANSACTED IN THE MEETING:
AGENDA: Extension of Corporate Insolvency Resolution Process by 90 days.

Decided: To file and application for the extension of Corporate Resolution Professional
Process by 90 days.
Next Meeting:
The RP is authorized to serve notice for the next meeting as and when required or when
any requisition is received from the members of committee to conduct such meeting.
INTERIM RESOLUTION PROFESSIONAL

(Ms. Pooja Prakash)
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXIII

PART III - Application Filed Before the Tribunal on Behalf of the concerned party
during CIRP
1 – APPLICATION BY GKCL
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL,

AT HYDERABAD
IN THE MATTER OF

On Behalf of
GK CONSTRUCTION LIMITED………………….…………..………………………...APPLICANT
Application under the section 60(5)(a) of the Insolvency and Bankruptcy Code, 2016 to
submit that the GKCL is a Financial Creditor
MOST RESPECTFULLY SHOWETH:
1. That the Applicant is incorporated under the Companies Act, 1956 having its registered
office 209-210 Akbar Road, Lucknow files the application under the section 60(5)(a)
submitting that Resolution Professional rejected the claim of GKCL on groundless notion.
2. That a Financial Creditor is one to whom a financial debt is owed. The Arvind Cement
Limited, owes an outstanding sum of INR 250 crores as on 30.03.2018 to GKCL. This debt
can be attributed by a kind perusal to the Hire Purchase transaction dated 05.07.2010 and
§5(8) (d) of the code which does not distinguish a hire purchase from a long-term funding
in all practicalities, the definition being an inclusive one and not exhaustive.
3. Furthermore, it is submitted that the very essential requirement of financial debt has to be
met viz, that the debt including interest is disbursed against consideration for time value of
money. Such a commercial effect of borrowing is always reckoned while making such
advances as in the instant case, the outflow is distanced by time & there is compensation
in the form of consideration to be paid by ACL to GKCL amounting to INR 500 crore along
with interest over a period of 10 years.
4. In light of the aforesaid facts and premises, it is most respectfully prayed that this Hon’ble
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXIV

Tribunal may be pleased to adjudge and declare that:

a. That GKCL is a Financial Creditor.
b. Pass/ make such other order(s)/ direction(s) as this Hon’ble Tribunal may deem fit and
proper in the facts and circumstances of the present case.
APPLICANT
GK Construction Limited

Date: 05th June 2018
Place: Hyderabad
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXV

Document Annexed for the Support of the Application of GKCL

AGREEMENT FOR CONSTRUCTION
This agreement is made on 05.07.2010
BETWEEN GK Construction Limited whose address is 209-210 Akbar Road, Lucknow
here in referred as “Contractor”,
AND the Property Owner Arvind Cement Limited incorporated under the Companies Act,
1956 having its registered office Green Valley, Banjara Hills, Hyderabad, Telangana
500034, referred to as the “Owner”
A. Agreement
The contractor agrees to perform certain construction, alteration or repair work (referred to
as the “work”) in accordance with this agreement. All work will be done in a good, sound
and workmanlike manner.
B. Work
The Work includes construction of 85 storage facilities whose ownership rights over these
storage facilities vested in Arvind Cement Limited immediately upon the completion of
construction
C. Price
The agreed upon price Rs. 500 crore/- ( Rupess Five Hundred Crore only). This amount
will be paid in the installment with the interest over a period of 10 years.
D. Materials
The Contractor will provide the materials, supplies, equipment, services and labor necessary
for the complete performance of this agreement. Unless otherwise agreed, all materials will
be new and of good quality.
E. Compliance with Laws
The Contractor will comply with all applicable Federal, State and local laws regarding work,
materials and the safety of persons or property. The Owner will not be responsible for any
loss or damage to the work or any property of the Contractor.
F. No Oral Changes
This Agreement can only be changed by an agreement in writing signed by both the Owner
and the Contractor. No variations, alterations, deviations, deletions or extra work can be
made unless both the Owner and the Contractor specifically agree in writing.
G. Failure to Complete Work
The Contractor must properly and diligently complete the work provided for in this
Agreement. Otherwise, the Owner may notify the Contractor in writing that he must begin
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXVI

work within three days or the Owner will complete the work by other means. Any additional
cost to complete this work will be charged to the Contractor.
H. Care of Property
The Contractor will protect the work, materials, property and adjacent property from
damage or loss. The Contractor will also take proper precautions for the safety of the public.
The Property will be kept free of waste, rubbish and surplus materials. The Contractor will
leave the Property “broom clean” before being entitled to the final payment under this
Agreement. The Contractor will also pay for, repair or replace any damage or loss caused
by the Contractor’s failure to perform this Agreement.
I. Contractor’s Continuing Liability
The Contractor will be liable for defective, faulty or improper materials or workmanship.
Upon written demand, the Contractor will immediately remedy all defects, faults or
omissions and complete all unfinished work. The Contractor’s obligations will not be
affected by the issuance of an Architect’s Certificate.
J. Notices
All notices under this Agreement must be in writing. The notices must be delivered
personally or mailed by certified mail, return receipt requested, to the other party at the
address written in this Agreement or to that party’s attorney.
parties hereto.
GK CONSTRUCTION LIMITED

ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXVII

2 – APPLICATION OF RST BANK FOR AVOIDANCE OF INTERIM FINANCE

AT HYDERABAD
IN THE MATTER OF
ARVIND CEMENT LIMITED……………………………………….………..CORPORATE DEBTOR
On Behalf of
CONSORTIUM LED BY PEOPLE’S BANK……..…………………………. FINANCIAL CREDITOR
RST BANK…………………..………………….………………………………..…..APPLICANT
Application under the section 60(5)(a) of the Insolvency and Bankruptcy Code, 2016
to submit that the interim finance raised by the Resolution Professional is avoidable
transaction
1. That Applicant RST Bank incorporated under the Companies Act, 1956 having its
registered office at 2/2, Canal Colony, Havlok Road, Lucknow, 226007 filed the present
application before the Hon’ble Tribunal against the interim finance raised by the resolution
professional of the Corporate Debtor.
2. That in the first meeting of committee of creditors, Ms. Pooja Prakash who is Resolution
Professional of Corporate Debtor proposed to raise the interim finance of INR 5,00,00,000
crore/- ( Rupeess Five Crore Only) so as to continue minimal operation as to continue
minimal operations at the plant in Rajasthan, to start the construction work at Karnataka
site and to pay salaries of workers and employees for the period since the commencement
of CIRP. Resolution Professional reasoned that TTCL has to be given assurance of payment
during the Corporate Insolvency Resolution Process (CIRP) in order to avoid value erosion
of assets of the Company in Karnataka.
3. That consortium lender by People’s Bank agreed to give interim finance and thus majority
of the creditors approved this proposal raised by the Resolution Professional.
4. That it is submitted by the Applicant that this proposal is a way to defraud the creditors thus
is an avoidable transaction as per the section 66 of the Insolvency and Bankruptcy Code,
2016. According to the case of In re Patch Graphics, Inc., 58 B.R. 743 (1986) in order to
raise interim finance two tests needs to be satisfied. First, it must benefit the Corporate
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXVIII

Debtor and the creditor as whole. Second, it must be actual and necessary for the ordinary
course of business. Applicant submits that any interim finance raised by the Resolution
Professional shall be used for conducting the insolvency resolution process and for
maintaining the Debtor as a going concern, but it cannot be used for building new assets
during corporate insolvency resolution process. Therefore, Applicant submits that the extent
to the payment given to TTCL under interim finance is unnecessary and contrary to the
provision of law.
a. The Resolution Professional’s proposal for interim finance to the extent that payment was
proposed to be made to TTCL was unnecessary and contrary to the provision of law.
APPLICANT
RST BANK
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXIX

3 – APPLICATION OF RST BANK FOR AVOIDANCE OF 20 LAKH RUPEES TO TTCL

AT HYDERABAD

IN THE MATTER OF
On Behalf of
CONSORTIUM LED BY PEOPLE’S BANK………..……………………….. FINANCIAL CREDITOR
POOJA
PRAKASH……………………………….…………..…………………….…..APPLICANT
to submit that the payment of 20 lakh given to TTCL should be avoided
1. That the Applicant is the Resolution Professional of Arvind Cement Limited, registered with
ICSI Insolvency Professionals Agency having registration number IBBI/IPA/52--31/014
submits that the transaction of Rs. 20 lakh (Rupees Twenty lakh only) is an avoidable
transaction.
2. It is humbly submitted that the payment of 20 lakhs to TTCL by ACL just before the
commencement of CIRP was made with the intent to defraud creditors of ACL hence the
transaction should be avoided.
3. That the transaction was entered into by ACL in March 2018 which is within a suspect
period (i.e. 1 year) in the case in hand directors decided to default the interest payment to
banks hence when the directors closed their eyes to the reality of the Company’s position
and carried on trading when it is obvious that Company was insolvent then it constitutes
wrongful trading.
4. That any legal act disposed of obligation done by way of payment causing avoidable loss to
creditors after which the insolvency of Company becomes inevitable will amount to
wrongful trading and if the transaction was unfair in relation to certain creditors and if the
Debtor was insolvent at the time the transaction took place or would become insolvent as a
result of the transaction then it should be avoided. In present case the filing of CIRP
application is the result of default done in interest payment by Corporate Debtor hence such
transaction must be avoided.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXX

5. Therefore, in light of the aforesaid facts and premises, it is most respectfully prayed that this
Hon’ble Tribunal may be pleased to adjudge and declare that:
a. The transaction that led to payment of 20 lakh to TTCL should be avoided.
APPLICANT
Ms. Pooja Prakash
Resolution Professional of Arvind Cement Limited
Date: 04th Mat 2018

Place: Hyderabad
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXXI

4 – APPLICATION OF RST BANK FOR ENFORCEMENT OF PERSONAL GUARANTEE

AT HYDERABAD
IN THE MATTER OF
ARVIND CEMENT LIMITED……………………………………………….CORPORATE DEBTOR
On Behalf of
CONSORTIUM LED BY PEOPLE’S BANK…………………….…….……. FINANCIAL CREDITOR
RST BANK…………………………………..……………………………………….APPLICANT
Application under the section 60(2) of the Insolvency and Bankruptcy Code, 2016 for
enforcement of personal guarantee against Mr. Arvind Kumar (promoter of ACL).
1. That Applicant RST Bank incorporated under the Companies Act, 1956 having its registered
office at 2/2, Canal Colony, Havlok Road, Lucknow, 226007, filed the present application
before the Hon’ble Tribunal for enforcing the personal guarantee which is provided by Mr.
Arvind Kumar for the loan obtained by Arvind Cement Ltd (ACL).
2. That Mr. Arvind Kumar is the promoter of ACL. In 2005 ACL obtained INR 200 Crore
working Capital facility from Applicant, for the security of which RST Bank was allowed
to have first charge on Plant & Machinery of ACL Rajasthan unit & Mr. Arvind Kumar also
gave personal guarantee for securing the loan granted by RST Bank.
3. That in the present factual matrix as ACL is unable to pay the present debt. The Applicant
files the present application for enforcement of personal guarantee against Mr. Arvind
Kumar.
4. That it is submitted by the Applicant that present application should be accepted as pursuant
to section 60(2) of the I&B Code, an application for initiation of bankruptcy proceeding
against personal guarantor of Corporate Debtor shall be filed before such NCLT where
CIRP of Corporate Debtor is pending. This position is also reiterated by the Hon’ble
Supreme Court of India in the case of State Bank of India v V. Ramakrishnan, [2018]
96 taxmann.com 271 (SC) where the court observe that if a Financial Creditor intends to
proceed against a personal guarantor he may file an application before the same adjudicating
authority where CIRP of Corporate Debtor is pending i.e. NCLT. Although NCLT is
required to decide such proceeding in accordance with provincial insolvency act, 1920.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXXII

5. That it is pertinent to mentioned here that Regulation 36 of IBBI (Insolvency Resolution

Process for Corporate Persons) read with Annexure VI (e) to form 6, Insolvency and
Bankruptcy (Application to adjudicating authority rules), 2016 also sought information for
details of personal guarantor when proceeding is initiated against Corporate Debtor. All
these regulation and sections clearly points out to the intention of Legislature to make the
personal guarantor equally liable for the speedy recovery of loan.
6. That in the present case personal guarantee should be enforced as only essential for invoking
jurisdiction under section 60(2) is pendency of CIRP of Corporate Debtor before the same
NCLT which is fulfilled in the present case and the moratorium which is applicable to the
Corporate Debtor during CIRP does not apply to personal guarantor of Corporate Debtor.
7. That section 128 of the Indian Contract Act, 1872 also provides for co-extensive liability of
borrower & guarantor i.e. surety liability is to the same extend as of the principal borrower.
Here reliance can be placed on Industrial Investment Bank of India Lt. v Bishwanath
Jhunjhunwala case where the SC observe that whole object of guarantee is defeat if the
personal guarantor is asked to postpone his remedy.
a) That application filed by RST Bank for enforcement of personal guarantee is admitted &
personal guarantee can be enforced.
b) Pass/ make such other order(s)/ direction(s) as this Hon’ble Tribunal may deem fit and
APPLICANT
RST BANK
Date – 20 May 2018

Place – Hyderabad
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXXIII

Document Annexed for the Support of the Application

GUARANTEE AGREEMENT
(PERSONAL GUARANTEE)
The present Personal Guarantee is executed at New Delhi on 20th day of October 2005
(present guarantee)
BY
Mr. Arvind Kumar (hereinafter referred to as Guarantor) whose address & other details
are provided under Schedule I thereto
IN FAVOUR OF
RST Bank (hereinafter referred as Creditors) whose address & other details are provided
under Schedule I thereto.
Whereas
(1)Pursuant to the loan agreement entered between (a) Arvind Cement Ltd. (Hereinafter
referred as borrower) more particularly mentioned in Schedule 1 & the Creditor for the
Loan more particularly mentioned in Schedule I & at the request of the borrower, the Lender
has agreed to lend the loan to borrower and the borrower have agreed to borrow the loan
form from lender on terms & condition contained in Loan Documents.
(2)One of the Condition for the Lender having agreed to grant the said loan to the borrower
was that the Guarantor shall execute in favour of Lender an unconditional and irrevocable
continuing guarantee being these presents.
NOW THIS AGREEMENT OF GUARANTEE WITNESS AS FOLLOWS –
For good and valuable consideration being lender providing the loan to the borrower under
the Loan Agreement (the receipt and sufficiency of which are acknowledged) the Guarantor
irrevocably and unconditionally:
(i) Guarantees to the Lender punctual performance by the borrower of all the borrower
obligations under the loan document and in the event borrower failing to perform any of its
obligations under the Loan Documents, the Guarantor shall, on first demand by the Lender
and without any demur, contest or delay, shall pay to the Lender the Guarantee
amount as stipulated in Schedule I of this agreement (the Guarantee Amount) and in
addition thereto shall pay interest and other amount that become due and payable by the
borrower to the Lender under the Loan document and any part thereof.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXXIV

i. Accepts and acknowledges that the obligations hereunder are joint and several and
independent of the obligations of the Borrower and a separate action or actions may be
brought against the Guarantor alone or jointly with the Borrower.
ii. The Guarantors agree and understand that the Guarantors shall not be entitled to delay the
payment of the guaranteed amounts for any controversy, question or dispute which may
arise between the Lender and Borrower(s) as regard to the terms and conditions of the said
Loan Agreement or the liability and/or payment of the amounts due thereunder.
iii. The Guarantor further agree and undertake to pay to the Lender all legal costs occasioned
to Lender by reason of omission, default in repayment by the Borrower(s) and in case of
legal costs, also the costs of enforcement or attempted enforcement of any security in
favour of the Lender against the loan or the costs which may incur by the Lender being
joined in any proceeding either with or without others in connection with any such security
or any proceeds thereof.
IN WITNESS WHEREOF this Guarantee Deed has been executed by the Guarantors at the
place and on the date first above written.
SCHEDULE I to the Present Personal Guarantee Agreement
S.No. Items Information to be inserted
1- Date of Agreement 20th October 2005
2- Guarantor Details Name – Mr. Arvind Kumar
Age – 50 Years
Constitution: Individual
Address: 25 Saket Vihar, New Delhi
3- Borrower Details Name – Arvind Cement Ltd. (ACL)
Constitution – Private Ltd. Company
Registered Office Address – 54 Nagar Colony, Hyderabad
Other Corporate Office – Situated at New Delhi and Bombay
4- Loan Agreement Loan agreement Dated 20 October 2005 entered between Arvind
Cement Limited (Borrower) & RST Bank (Lender)
5- Loan Principal Amount INR 200 Crore
6- Guaranteed Amount INR 200 Crore
7- Notice Any notice to the Guarantor for any matter shall be sent to his
Registered Office.
8- Place of execution New Delhi
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXXV

5 – APPLICATION OF RP OF ACL FOR AVOIDANCE OF 20 CRORE TO APL

AT HYDERABAD
IN THE MATTER OF
ARVIND CEMENT LIMITED………………………….……………………..CORPORATE DEBTOR
On Behalf of
PEOPLE’S BANK…………………………………...………………….…. FINANCIAL CREDITOR
POOJA PRAKASH……………………………….......…...……………………….…..APPLICANT
Application under the section 60(5)(b) of the Insolvency and Bankruptcy Code, 2016
to submit that transactions that led to payment of excess payment of INR 20 crore shall
be avoided
1. That the Applicant is the Resolution Professional of Arvind Cement Limited, registered
with ICSI Insolvency Professionals Agency having registration number IBBI/IPA/52--
31/014 submits that the transaction that led to excess payment of Rs. 20 crore (Rupees
Twenty Crore only) is an avoidable transaction.
2. That the Applicant submits that APL is wholly owned by ACL hence will fall under
definition of related party. According to the case of BCL Homes Ltd. vs. Canara Banks
[2018] 93 taxmann.com 279 (NCL-AT), transactions could be avoided if in case the
transfers made in favor of related parties within two years preceding insolvency
commencement date .
3. Furthermore, when such transactions that led to excess payment took place in suspect
period the bad faith is presumed to exist. As per the UNCITRAL, Legislative Guide the
defense of good faith transaction is not applicable in case of related party as they will
probably have a better knowledge about the Debtor ́s affairs. The excess payment could not
be justified by merely giving a window of ordinary course of business hence the transaction
is avoidable.
4. Therefore, in light of the aforesaid facts and premises, it is most respectfully prayed that
this Hon’ble Tribunal may be pleased to adjudge and declare that:
a. The transaction that led to payment of excess amount of INR 20 crores to Arvind Power
Limited should be avoided.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXXVI

APPLICANT
Ms. Pooja Prakash
Resolution Professional of Arvind Cement Limited
Date: 20th May 2018
Place: Hyderabad
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXXVII

6 – APPLICATION OF APL FOR CLAIMING ITSELF AS OPERATION CREDITOR

AT HYDERABAD
AT COMPANY APPLICATION NO. (IB) _____ (ND)/2018

IN THE MATTER OF
ARVIND CEMENT LIMITED………………….……………………………..CORPORATE DEBTOR
On Behalf of
PEOPLE’S BANK…………………………..……..……………….……….FINANCIAL CREDITOR
ARVIND POWER LIMITED………………………….……………….………………..APPLICANT
to submit its claim as an Operational Creditor
1. That the Applicant Arvind Power Limited is incorporated under the provisions of the
Companies Act, 1956, established in the year 2003 having its registered office at 31 Tagore
Colony, Delhi 110091, files the present application submitting that its claim should be
accepted as Operational Creditor.
2. That the Applicant falls under the definition of Operational Creditor because any person to
whom an operational debt is owned including any person to whom such debt has been
legally assigned or transferred is an Operational Creditor. Operational Creditors are those
whose liability from the entity comes from a transaction on operations and who supply
goods or render any service. In the present case, APL is that acceptor whose liability from
the entity comes directly out of its operations.
Therefore, in light of the aforesaid facts and premises, it is most respectfully prayed that this
That the Arvind Power Limited should be accepted as operation creditor of APL.
Pass/ make such other order(s)/ direction(s) as this Hon’ble Tribunal may deem fit and
APPLICANT
Arvind Power Limited
Date 22th May 2018
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXXVIII

Document Annexed for the Support of the Application of APL

POWER PURCHASE AGREEMENT
This POWER PURCHASE AGREEMENT (hereinafter referred to as "Agreement" or
"PPA") is made and entered into effective as of 1st day of January, 2006 amongst:
Arvind Cement Ltd. a Company registered under the Companies Act 1956 with its
registered office at Hyderabad (Hereinafter referred to as "ACL", which expression shall
unless repugnant to the context or meaning thereof, include its successors and assignees).
AND
Arvind Power Ltd. a Company incorporated under the Companies Act, 1956 and
carrying on the business of distribution and supply of electric energy and fly ash in the
area of supply mentioned in its license at Rajasthan hereinafter referred to as
"Distribution Licensee" (which expression shall unless repugnant to the context or
meaning thereof be deemed to mean and include its successors & assignees).
AND WHEREAS parties has mutually decided to enter into this credit facility agreement
under certain terms and conditions mentioned below.
A. That ACL shall mandatorily purchase 80% of the power generated by APL. In the event,
ACL is not able to consume the entire output generated by APL, APL may sell the
balance power to a third party and ACL shall be liable.
B. That ACL shall provide APL with the necessary transmission facility to transfer power
to the grid within a period of 5 years from the scheduled date of commencement of
operations of the power plant.
C. That ACL shall make minimum payments to the APL to meet the expenses, taxes and
debt-service obligations to the lenders of the Captive Power Plant even if no sale of power
happens in any given year
D. That APL to supply fly ash generated from the power plant to the manufacturing unit as
a raw material for the cement plant.
E. That in pursuance of clause 6 of Guidelines by Rajasthan Electricity Regulatory
Commission for Development, Management and Operations of Off‐Grid Distributed
Energy Generation and Supply, the Rural Local Body has granted consent to Rural
System Operator to establish Off‐Grid electric power generation an fly ash generation
facility in the Project Area situated at Rajasthan.
F. That the rural System Operator intends to own and/or operate an electric power
generation facility using Off‐grid power Energy System (ORES). Rural System Operator
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES LXXXIX

desires to operate such generation in the area of Distribution Licensee and sell a portion
or all of the power produced to the Distribution Licensee. The Distribution Licensee has
no direct financial involvement in the investment, construction, operation, or
maintenance of Rural System Operator’s generation facility.
G. Term of the Power Purchase Agreement shall be for 5 year supply of the Off‐Grid Energy
System as per the order issued by State Electricity Regulatory Commission for different
off‐grid RE applications, from the date of commercial operation of the power plant. The
Power Plant will be commissioned by year 2006 unless extended by SREDA/Distribution
Licensee.
H. The PPA may be terminated either by the Rural System Operator or the Distribution
Licensee only in the event of default by Distribution Licensee or the Rural System
Operator respectively.
I. Default by Distribution Licensee will mean non‐payment or partial payment of electricity
charges for a period of consecutive three months.
J. Default by Rural System Operator shall mean non‐supply of electricity generated and
delivered at the Delivery Point for a period of consecutive three months for reasons
exclusively attributable to the Rural System Operator.
parties hereto.
ARVIND POWER LIMITED

ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XC

7 – Application of APL for Avoidance of 100 Acres Mortgage Land

AT HYDERABAD
IN THE MATTER OF
ARVIND CEMENT LIMITED…………………………………...…………..CORPORATE DEBTOR
On Behalf of
PEOPLE’S BANK…………………………..……….…………………….. FINANCIAL CREDITOR
MAHESH KUMAR.………………………………………………………………..…..APPLICANT
to submit that mortgage of 100 acres land by Arvind Power Limited is an avoidable
transaction
1. That the Applicant Mr. Mahesh Kumar is the resolution professional of Arvind Power
Limited with ICSI Insolvency Professionals Agency having registration number
IBBI/IPA/15-25/026 has filed the present application under the section 60(5)(b) for
avoiding the transaction of 100 acres land which was mortgage by the Arvind Power Limited
to its parent Company Arvind Cement Limited for mortgaging to People’s Bank for the
security purposes.
2. That Arvind Cement Limited was in dire need of funds of Rs 500,00,00,000/- ( Rupees Five
Hundred Crore Only). For the purpose of giving security to the People’s Bank, Arvind
Cement Limited brought management of Arvind Power Limited into the negotiations and it
decided to mortgage the 100 acres land which is situated in 521, Ghanataghar Alwar
Rajasthan in the of the Arvind Power Limited in favor of the consortium led by the People’s
Bank.
3. That the Applicant submits that as per the IDBI vs Jaypee [2018] 93 taxmann.com 308
said transaction is avoidable transaction as it is preferential transaction as per the section 43
of the Insolvency and Bankruptcy Code 2016 , undervalued transaction as per the section
45 of the code and also fraudulent trading as per the section 66 of the code.
4. That Applicant submits that it is an preferential transaction under the section 43 of the
Insolvency and Bankruptcy Code 2016, because it took place within the relevant time
(which is nowhere disputed presently); the transaction is for the benefit of creditor or surety
or guarantor which gives him better position in accordance with sec 53. Further according
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XCI

to the Ravindra Gopal v. Tattva & Mittal Lifespaces (P.) Ltd., [2018] 91
taxmann.com 378 (NCLT - Mum.), it was said that the operational debt includes service
done by a person for another for consideration. Service is an intangible commodity in the
form of human effort, such as labour, skill or advice. Here, ACL provided transmission
facility to transfer power to grid with some other managerial and financial assistance.
Therefore, ACL was an Operational Creditor of APL. Moreover, Security interest comes
within the purview of preferential transaction as a creditor who is given security is being
placed in a better position than an unsecured creditor. After this transaction, ACL became
secured creditor from unsecured creditor thus is in beneficial position in accordance with
section 53.
5. That the Applicant submits the as per the case of IDBI vs Jaypee [2018] 93 taxmann.com
308 this transaction is also undervalued transaction under the section 45 of the Insolvency
and Bankruptcy Code 2016, because it is presumed that less than fair, or no, consideration
to be an evidence of undervalued transaction. In the instant case, the said mortgage was
made without any consideration to APL, thus an undervalued transaction.
6. At last Applicant also submits that this transaction was also intended to defraud the creditors
as per the section 66 of the Insolvency and Bankruptcy Code 2016, because; it is held in
plethora of cases like Official Liquidator v Ram Swarup, (1997) 2 Comp LJ 221; In re
William C. Leitch Brothers Ltd., [1933] 3 Comp. Cas. 97; In re Peerdan Juharmal
Bank Ltd.; AIR 1958 Mad.583; Nagendra Prabhu v. Popular Bank (1969) ILR Ker
340; Official Liquidator v. Ram Swarup, [1997] 88 COMP CASE 569 that-
“where Company continues to carry on business and to incur debts at a time when it
knew that no reasonable prospect of the creditors ever receiving payment, it is in
general a proper inference that the Company is carrying on business with intent to
defraud.”
Here, APL was not able to pay salary to its workers since May 2017 still in September 2017
APL mortgaged his land for the benefit of ACL which could had been used for paying off
APL’s own debts. Further, as per the credit facility agreement APL was required to obtain
approval of lenders for creating interest in favor of anyone which was also not done. Thus,
these circumstantial evidences show that the mortgage created by APL was done to defraud
the creditors.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XCII

7. Therefore, in light of the aforesaid facts and premises, it is most respectfully prayed that this
c. The mortgage of 100 acres land by the Arvind Power Limited in favor of consortium of
People’s Bank for the benefit of Arvind Cement Limited is an avoidable transaction as the
section 43, section 45 and section 66 of the Insolvency and Bankruptcy Code, 2016.
d. The said transaction should be reversed as per the section 44 of the Insolvency and
Bankruptcy Code, 2016.
e. Pass/ make such other order(s)/ direction(s) as this Hon’ble Tribunal may deem fit and
APPLICANT
Mr. Mahesh Kumar

Date:24th May 2018
Place: Hyderabad
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XCIII

Document Annexed for the Support of the Application

ANNEXURE NO. 1-
CREDIT FACILITY AGREEMENT
This agreement is made as of the day of dd/mm/yyyy by and between

People’s Bank (the ‘Lender’) a banking Company incorporated under the provisions of
the Companies Act, 1956 having its registered office at People’s Bank, Senapati Bapat
Marg, Lower Parel (West) Mumbai 400013, hereinafter referred as “Lender” which
expression shall, unless it be repugnant to the context or meaning thereof, be deemed to
mean and include its successors in interest and permitted assigns).
AND
Arvind Cement Limited (the ‘Borrower’) Company incorporated under the provisions of
the Companies Act, 1956, established in the year 1993 having its registered office at 55,
Sajjan Vihar, Jaipur Rajasthan 302001, hereinafter referred as “Borrower” which
expression shall, unless it be repugnant to the context or meaning thereof, be deemed to
mean and include its successors in interest and permitted assigns)
People’s Bank and Arvind Cement Limited together for the purpose of this credit facility
agreement shall be referred as parties and individually as ‘Bank’ and ‘APL’.
AND WHEREAS parties has mutually decided to enter into this credit facility agreement
under certain terms and conditions mentioned below.
A. The Borrower hereto, being in need of money, has requested the Lender to give him a
loan of Rs.500,00,00,000 /- (Rupees Five Hundred Crore only) for the ordinary
course of business, to which the Lender has agreed.
B. The Borrower hereby agrees and undertakes to return the loan of Rs. 500,00,00,000 /-
(Rupees Five Hundred Crore only), in installments.
C. For the purpose of security Borrower agrees to mortgage 100 acres land to Lender,
situated at 521, Ghanataghar Alwar Rajasthan.
D. That if the borrower does not pay the said amount with interest when shall become due
and payable under these presents, the Lender shall be entitled to sell the said land
through any competent court and to realise and receive the said loan amount and
interest, out of the sale proceeds of the land.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XCIV

E. The terms and conditions of this Agreement are arrived at by the mutual consent of
the parties hereto.
PEOPLE’S BANK

ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XCV

8 –APPLICATION FOR RECOGNIZING THE FOREIGN PROCEEDINGS

AT HYDERABAD

IN THE MATTER OF
ARVIND CEMENT LIMITED………………….……………………………..CORPORATE DEBTOR
On Behalf of
CONSORTIUM LED BY PEOPLE’S BANK………………………….…….…. FINANCIAL CREDITOR
KELVIN MURRAY ……….……………………...……………………..………….....APPLICANT
Application under the Article 15 of the UNCITRAL Model Law on Cross border
insolvency for recognition of the foreign proceedings
1. That the Applicant is the interim trustee appointed by the United States Bankruptcy court
and has filed this application being the foreign representative to the Adjudicating Authority
in India for the recognition of the foreign proceedings as foreign main proceedings.
2. That the Applicant submits that pursuant to Article 17 of the Model Law, a foreign
proceeding can be recognized as foreign main proceeding or non-main proceeding. Here,
former proceeding is deemed to take place in the state where Debtor has COMI and the
later is where Debtor has an establishment. It is worthy to note, that in the absence of proof
to the contrary, the registered office of a Debtor is presumed as his COMI. In the present
case, COMI of ALSL lies in USA as the registered office of ALSL stands located in USA.
3. That, for determination of COMI, there is no particular formula, rather the court place
reliance on a variety of factors which are both objective and ascertainable by third parties.
These factors include place where Debtor was incorporated, location of Debtor primary
bank, the law governing the main contract of the Company, the location of main creditors.
In the present case, the fact that ALSL was incorporated in USA, all the banks stand deemed
US based banks. Further, these banks having approached the US court for insolvency
proceedings, itself convey that COMI of ALSL lies in USA as USA is readily ascertainable
by creditors.
4. Further, the mere fact that decision of the co. is taken from other place than its registered
office is not enough to rebut the presumption as there is no reason why a third party would
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XCVI

have any knowledge of the location of the place from where the director manage the
Company’s affairs. Reliance must be placed on Re Sphinx Ltd case where the court
regarded registered office as place of COMI, even though decision for management are
taken from any other place.
5. That the article 25 and 26 of the Model Law law mandate cooperation between the domestic
& foreign Court or foreign representative. Therefore, in the present case, cooperation must
be provided to Mr. Murray as the present case falls under Art. 1 of the Model Law as
assistance is sought domestically by a foreign representative. Therefore, cooperation must
be provided for the loan of 100 million to Mr. Murray as per the forms referred under Art.
27 of the Model Law.
6. Thus, in light of the aforementioned facts, it is most humbly requested -
a. To recognize foreign proceeding as foreign main proceeding.
b. To provide cooperation to Mr. Kelvin Murray for the loan of 100 Million which is
provided by ALSL to ACL.
APPLICANT
KELVIN MURRAY
Foreign Representative
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XCVII

9 – APPLICATION OF APL FOR IMPLEADMENT

AT HYDERABAD

IN THE MATTER OF
ARVIND CEMENT LIMITED…………………………….…………………..CORPORATE DEBTOR
On Behalf of
CONSORTIUM LED BY PEOPLE’S BANK.……..………………..…………. FINANCIAL CREDITOR
MAHESH KUMAR………………………………….……………………………..…..APPLICANT
Application under the section 60(5)(b) of the Insolvency and Bankruptcy Code, 2016 to
impleaded Arvind Power Limited in the suit of Arvind Cement Limited
1. That the Applicant Mr. Mahesh Kumar is the Resolution Professional of Arvind Power
IBBI/IPA/15-25/026 has filed the present application under the section 60(5)(b) submitting
th+at Arvind Power Limited should be impleaded.
2. That the Applicant submits that Arvind Power Limited is wholly owned subsidiary and an
Operational Creditor to Corporate Debtor hence their presence will enable the tribunal to
adjudicate more effectually and completely.
3. That Applicant relies on the case of case of S.Krishnan v Rathinavel Naicker and Others
2006 Indlaw MAD 1973 where High Court laid down the test that: “
“A party can be impleaded when the relief prayed for in the proceedings is sought to be
made binding on him or when it is felt that he would be adversely affected by the ultimate
outcome of the proceedings.”
Furthermore, as per the case Terai Tea Co. pvt. Ltd. v. Kumkum Mittal AIR 1994 Cal
191 where it was held that the if a legal right of a person is affected if not added as a party
then such person should be impleaded. If there is a question which cannot be settled without
such impleadment then it must be allowed by learned Tribunal. Therefore, it is prayed before
the tribunal that Arvind Power Limited should be impleaded in interest of its rights.
a. Arvind Power Limited should be impleaded in the suit of Arvind Cement Limited.
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XCVIII

APPLICANT
MAHESH KUMAR
(Resolution Professional of Arvind Power Limited)
Date: 28th August 2018
Place: Hyderabad
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES XCIX

10 – APPLICATION OF JMCL FOR ACCEPTANCE OF RESOLUTION PLAN

AT HYDERABAD
IN THE MATTER OF
ARVIND CEMENT LIMITED………………………….……………………..CORPORATE DEBTOR
On Behalf of
CONSORTIUM LED BY PEOPLE’S BANK……………………………..…. FINANCIAL CREDITOR
JM CEMENT LIMITED……….…………………….…………………….…………..APPLICANT
to submit that JMCL’s Resolution Plan should be accepted
1. That the Applicant is incorporated under the Companies Act, 1956 having its registered
office at M-21, Kunji Shetra, New Delhi 110546, filed the present application before the
Hon’ble Tribunal to have its Resolution Plan accepted by the Resolution Professional of
Arvind Cement Limited.
2. That the Applicant submitted its revised Resolution Plan by offering a 10 percent haircut
for the Financial Creditors. But, this was not accepted as it was submitted after the last date
of the submission of resolution plan fixed by the Resolution Professional.
3. That it is submitted that as per the Regulation 39 of CIRP regulations provides that a
Resolution Plan could be accepted if it is submitted 30 days before the completion of CIRP
proceedings.
4. Furthermore, the Applicant relies on the case of Punjab National Bank vs. Bhushan
Power & Steel Ltd., [2018] 92 taxmann.com 369, where it was held that if considerable
time is still left before completion of CIRP process then even if Resolution Plan is submitted
after the deadline set by RP or COC should be taken into consideration . In the instant case,
the Resolution Plan submitted by JMCL on 19-10-2018 which is clearly falling within the
time limit.
5. That reliance is made on the of Bank of Baroda, In re vs [2018] 93 taxmann.com 331
(NCLT - Kolkata) the same issue was raised the Hon’ble Tribunal held that “whenever
a resolution Applicant's plan is under consideration of Committee of Creditors (CoC) and
that plan is not at all placed before Adjudicating Authority for approval and if another
resolution Applicant comes forward making an offer before CIRP duration expires, that it
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES C

will satisfy all stakeholders of Corporate Debtor, then there is nothing in Code or
Regulations to prevent CoC from considering a revised offer of another Applicant. If a
resolution Applicant is willing to present the revised Resolution Plan then COC should
directed to reconsider the Resolution Plan”. Hence, the Resolution Plan submitted by
JMCL should be considered.
c. The Resolution Plan of JMCL should be accepted by the Resolution Professional of Arvind
Cement Limited and the Committee of Creditors.
d. Pass/ make such other order(s)/ direction(s) as this Hon’ble Tribunal may deem fit and
APPLICANT
JM Cement Limited

Date:
Place: Hyderabad
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES CI

11 – APPLICATION OF RP FOR EXTENSION OF CIRP PROCESS

AT HYDERABAD
IN THE MATTER OF
ARVIND CEMENT LIMITED……………………………………….………..CORPORATE DEBTOR
On Behalf of
CONSORTIUM LED BY PEOPLE’S BANK……………………………….…. FINANCIAL CREDITOR
POOJA PRAKASH……………………………….……………………………….…..APPLICANT
Application under the section 12 of the Insolvency and Bankruptcy Code, 2016 read
with Regulation 40 of the Insolvency and Bankruptcy Board of India (Insolvency
Resolution Process for Corporate Persons) Regulations, 2016 for extension of
Corporate Insolvency Resolution Process
1. That the Applicant Ms. Pooja Prakash is the Resolution Professional of Arvind Cement
IBBI/IPA/52--31/014 has filed the present application under the section 12 of the
Insolvency and Bankruptcy Board of India read with Regulation 40 of the Insolvency
and Bankruptcy Board of India (Insolvency Resolution Process for Corporate
Persons) Regulations, 2016 of the for the extension of the Corporate Insolvency
Resolution Process by 90 days.
2. That the Applicant submits that according to the 7th meeting of Committee of Creditor of
the Corporate Debtor held on 27.08.2018 the Creditors resolved to file an extension of
CIRP to another 90 days.
3. Therefore, it in the light of the aforementioned facts it is humbly requested to the Hon’ble
Tribunal to extend the CIRP by 90 days.
APPLICANT
POOJA PRAKASH
ANNEXURE/FORMS/REPORTS ON BEHALF OF CONCERNED PARTIES CII

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INSOLVENCY AND BANKRUPTCY MOOT COURT COMPETITION

ARVIND CEMENT LIMITED, CORPORATE DEBTOR

WRITTEN SUBMISSIONS ON BEHALF OF THE CONCERNED PARTIES

INDEX OF AUTHORITIES ..................................................................................................H

STATEMENT OF FACTS .....................................................................................................O

ANALYSIS OF ISSUES .......................................................................................................... 1

ISSUES ON BEHALF OF THE CORPORATE DEBTOR AND ITS PROMOTER

ISSUE: 1 THAT NCLT SHOULD PUT A STAY ON CIRP PROCEEDINGS. ................................ 1

ISSUE: 2 THAT PAYMENT MADE BY ACL TO TTCL IS NOT AN AVOIDABLE TRANSACTION... 1

ISSUE:4 THAT THE APPLICATION FOR ENFORCEMENT OF PERSONAL GUARANTEE AGAINST

WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES A

ISSUES ON BEHALF OF INSOLVENCY PROFESSIONALS

ISSUE:1 THAT RP JUSTIFIED IN REJECTING THE CLAIM OF GKCL AS FINANCIAL CREDITOR

ISSUE:3 THAT THE APPLICATION FOR RECOGNITION OF FOREIGN PROCEEDING SHOULD

ISSUE 4: THAT THE RP IS JUSTIFIED IN REJECTING THE CLAIM OF APL ........................... 8

ISSUE 5: THAT EXCESS PAYMENT MADE TO APL MUST BE AVOIDED .................................. 8

ISSUE 6: THAT RP IS JUSTIFIED IN REJECTING THE REVISED RESOLUTION PLAN ............. 9

ISSUES ON BEHALF OF OPERATIONAL CREDITORS

ISSUE:1 THAT THE CLAIM OF GKCL AS A FINANCIAL CREDITOR SHOULD BE ACCEPTED10

ISSUES ON BEHALF OF FINANCIAL CREDITORS/COC

ISSUE: 2 THAT PAYMENT MADE BY ACL TO TTCL BEING FRAUDENTLY INTENDED IS AN

ISSUE: 3 THAT PERSONAL GUARANTEE SHOULD BE ENFORCED AGAINST MR. ARVIND

WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES B

ISSUES ON BEHALF OF OTHER PARTIES

ISSUE: 1 THAT RECOGNITION & COOPERATION MUST BE PROVIDED IN RESPECT TO THE

ISSUE: 5 THAT REVISED PLAN PROPOSED BY JMCL SHOULD BE ACCEPTED. ................... 19

ISSUE: 6 THAT RP OF APL BEING A NECESSARY PARTY SHOULD BE IMPLEADED ............ 20

WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES C

PART – I FILING OF CIRP APPLICATION ....................................................................II

APPLICATION BY FINANCIAL CREDITOR TO INITIATE CORPORATE

PART II - ACCEPTANCE OF INSOLVENCY PROCEEDING/PROCEDURE

PUBLIC ANNOUNCEMENT ..........................................................................................XIV

PROOF OF CLAIM BY OPERATIONAL CREDITORS EXCEPT WORKMEN AND

WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES D

4 – Raw Material Suppliers (FORM B) .......................................................................... LV

PROOF OF CLAIM BY A WORKMAN OR AN EMPLOYEE (FORM D) ................ LXVII

PART III - APPLICATION FILED BEFORE THE TRIBUNAL ON BEHALF OF THE

WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES E

ACL Arvind Cement Limited

AIR All India Reporter

ALSL AQUA Logistics and Shipping Limited

APL Arvind Power Limited

BLRC Banking Law Reform Committee

BOD Board of Directors

C.P. Company Petition

CIRP Corporate Insolvency Resolution Process

CoC Committee of Creditors

ECR European Court Reports

EWCA England and Wales Court of Appeal

WRITTEN SUBMISSIONS ON BEHALF OF CONCERNED PARTIES F

GKCL GK Constructions Limited

IAS Indian Accounting Standard

IBBI Insolvency and bankruptcy board of India

IBC Insolvency and Bankruptcy Code

IRP Interim Resolution Professional

JMCL JM Cements Limited

NCLAT National Company Law Appellate Tribunal

1. Companies Act, 2013 [Act 18 of 2013].  

2. The Insolvency & Bankruptcy Code, 2016 [Act 31 of 2016].  

3. UNCITRAL Model Law on Cross-Border Insolvency, 1997.   

. ~RULES AND REGULATIONS~  

1. Accounting Standard (AS) 18.  

2. Companies (Acceptance of Deposits) Rules, 2014.  

3. Indian Accounting Standard (Ind AS) 24.  

4. Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.  