Whether re-structuring of a loan is tantamount to novation of original contract and whether non-fulfilment of the conditions or preconditions of the re-structuring relegates the date of default back to the original default date? – REC Ltd. Vs. Hiranmaye Energy Ltd. – NCLT Kolkata Bench
Hon’ble NCLT Kolkata Bench held that even though the Corporate Debtor, by way of supplementary affidavits and also by way of the averments in the petition has sought to establish that he has made sizeable payments and also that it is financially a solvent company, the fact remains that the default has been committed in payment of the very first instalment of debt and interest that fell due even in terms of the revised restructuring plan of REC. Even if a part remains unpaid on the due date of payment, it would constitute a default. This fact unambiguously emerges from the discussion above that the Corporate Debtor is in default of repayment as per the re-structuring plan sanctioned by the Financial Creditor, with the provisions of Section 10A not coming to his aid to escape the clutch of IBC. It has been contended that the onus of getting the pre-condition fulfilled was not only on the debtor but was also on the financial creditors as well as the WBSERC.
