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“It is also relevant to notice that when Resolution of Respondent No 2 (BKEL) is at the final stages, there is no occasion for Respondent No 1 (NHAI) to proceed to terminate the concession agreement to further complicate the resolution of an entity,” said
NCLAT observed that the insolvency resolution of BKEL, which is for the development of a road project in Baleshwar-Kharagpur Section of NH-60, is as per the framework approved appellate tribunal for recovery of debts of crisis-hit IL&FS group and its entities.
It further said when an entity is to be resolved as per the resolution framework, payments to all creditors/ claimants including the lenders have to be as per the resolution process.
“We further direct that the applicant as well as respondents to take appropriate measures for final resolution of the entity, i.e. respondent No.2,” said NCLAT while disposing of the interim application moved
A concession agreement was signed on April 24, 2012 between NHAI and BKEL, in which it had availed financial facilities from the SBI.
As per the concession agreement, BKEL was obliged to pay concession fees and premium to the NHAI. However, a deferment in payment of premium was granted NHAI entering into a supplementary agreement in 2016.
However, in 2018, IL&FS crisis happened and in 2019, BKEL was categorised as ‘Red Entity’ of the IL&FS Group as per the roadmap approved NCLAT.
In the red list, those IL&FS group companies were listed which were not able to meet financial and operational obligations, including payment obligations to their creditors.
Meanwhile, NHAI wrote several letters demanding repayment of premium dues, interest, default interest, penal interest, interest overdue etc, which was objected SBI as it may derail the resolution process.
Later, NHAI issued notice for initiating a proposal for procurement of a third-party agency for user fee collection in two toll plazas on NH-60, which were held BKEL.
On this, SBI approached NCLAT and submitted that NHAI had demanded for payment of a premium over Rs 400 crore, whereas in escrow account at present the balance is only Rs 291.41 crore.
As per the concession agreement, payment has to be made to NHAI within 30 days of receiving a demand along with necessary particulars, failing to which it will terminate the agreement.