IN THE HON’BLE NATIONAL COMPANY LAW TRIBUNAL,

PRINCIPAL BENCH, NEW DELHI

CONTEMPT PETITION NO. 13 OF 2023
IN
CP NO. 1236 OF 2016
IN THE MATTER OF: -
MR. NITIN KHANDELWAL
… OPERATIONAL CREDITOR
VERSUS
M/S. MAINI CONSTRUCTION EQUIPMENTS PRIVATE LIMITED
… CORPORATE DEBTOR
AND
STATE BANK OF INDIA …
APPLICANT
VERSUS
AJAY MAINI …
CONTEMNOR
INDEX

S.NO PARTICULARS PAGE NO.

1. Reply on behalf of Respondent to the

Contempt Petition filed by SBI alongwith

affidavit.

2. Annexure R/1- Copy of letter dated

28.03.2023 sent by SBI to Respondent.

3. Annexure R/2- Copy of response dated

29.03.2023 sent by Respondent to SBI.

4. Annexure R/3- Copy of Guarantee Agreement

dated 25.04.2015.

5. Annexure R/4- Copy of Order dated

 20.07.2022 passed by Hon’ble NCLT.

6. Annexure R/5 (colly)- Copy of documents

pertaining to settlement of loan amount by

Personal Guarantor by Sh. Harmeet Singh.

7. Proof of Service

RESPONDENT

NEW DELHI
DATED: 08.08.2023
THROUGH:

(ARCHER JURISTS LLP)

Advocates & Solicitors
Rohitt Kumar Yadav, Ankit Sibbal
Advocates
Off:- C-10/4, Vasant Vihar,
New Delhi-110057.
Mob:- 9818133353
info@archerjurists.com
 IN THE HON’BLE NATIONAL COMPANY LAW TRIBUNAL,

PRINCIPAL BENCH, NEW DELHI

CONTEMPT PETITION NO. 13 OF 2023

IN

CP NO. 1236 OF 2016

IN THE MATTER OF: -

MR. NITIN KHANDELWAL

… OPERATIONAL CREDITOR

VERSUS

M/S. MAINI CONSTRUCTION EQUIPMENTS PRIVATE LIMITED

… CORPORATE DEBTOR

AND
STATE BANK OF INDIA …

APPLICANT

VERSUS

AJAY MAINI …

CONTEMNOR

REPLY ON BEHALF OF AJAY MAINI (ALLEGED CONTEMNOR)

TO THE CONTEMPT APPLICATION FILED BY STATE BANK OF

INDIA

MOST RESPECTFULLY SHOWETH:

1. That the present contempt application has been filed by State

Bank of India (hereinafter the applicant) against Sh. Ajay

Maini (hereinafter the respondent) for alleged wilfull and

deliberate violation of the direction and non-compliance of

order dated 27.02.2023 passed by Hon’ble National Company

Law Tribunal, Principal Bench, New Delhi (hereinafter the

NCLT) in CP No. 1236/2016 titled as Nitin Khandelwal vs.

Maini Construction Equipments Pvt. Ltd.

2. That the Hon’ble NCLT vide its order dated 27.02.2023 passed

the Resolution Plan proposed by Sh. Ajay Maini (ex-

management of Corporate Debtor) in C.A. no. 622/2019.

3. The Respondent herein is the successful Resolution Applicant

who was the ex-management of the Corporate Debtor.

PRELIMINARY OBJECTIONS:

That the present application filed by the Applicant is de-hors

merit and is nothing but a figment of imagination of the

Applicant but also palpably absurd, frivolous, vexatious,

 preposterous, worth no credence, malafide and untenable.

Moreover, the insinuation levelled against the answering

Respondent are wholly without any substance and unless and

until specifically admitted herein the same are specifically and

emphatically denied.

1. That the present application is filed by the Applicant just to

derail the smooth process of takeover of the Corporate Debtor.

The averments made in the present application is nothing but

an abuse of the process of law and against the tenets of the

IBC.

2. The applicant being a PSU Bank has committed a grave error

on its part by concealing substantial and material facts from

the Successful Resolution Applicant and the Hon’ble Tribunal

that the Applicant has settled the loan amount of Rs. 9.83

Crores from the Personal Guarantor Sh. Harmeet Singh for Rs.

6 Crores as a one-time settlement.

3. That the Applicant under the garb of being the sole Financial

Creditor of the Corporate Debtor is dictating its terms post

approval of the Resolution Plan by the Hon’ble Tribunal by

threatening the Respondent in case, the payments are not

started forthwith, it shall move Adjudicating Authority for

Liquidation of the Corporate Debtor.

4. The Respondent had proposed the Resolution Plan in which

the Financial Creditor (Applicant) is to be paid in full as per

the timelines mentioned in the Resolution Plan. It is pertinent

to mention that the Respondent had deliberately concealed the

 fact of the OTS with the Personal Guarantor from the Hon’ble

Tribunal and Corporate Debtor so that no amendment in the

Resolution Plan should be made and the Resolution Plan gets

approved by the Hon’ble Tribunal on the full amount of Rs.

9.83 crores to be paid to the Applicant.

5. That the Respondent herein or Successful Resolution

Applicant (SRA) strictly respects the timelines for payment to

the creditors as mentioned in the approved Resolution Plan

and the creditors shall be paid as per the terms mentioned in

the approved Resolution Plan.

6. That the approved Resolution Plan postulates an initial

moratorium of a period of 6 months for attaining stability of

the business which had been disrupted due to the actions of

the sole Financial Creditor, i.e., SBI during the period of CIRP

moratorium.

7. The said initial moratorium under the Resolution Plan had

only one condition i.e., continuation of payments of interest

during the moratorium period and no other condition was

imposed for the said moratorium which was to operate during

the initial period of the implementation of the resolution plan.

8. That despite the applicability of the initial moratorium of 6

months for making payments to the creditors, the Applicant

jumped the gun and started demanding payments of the initial

deposit from the Respondent due to their banking targets.

9. The Respondent replied to the Applicant and informed the

Respondent that the payments, as mentioned in the approved

 Resolution Plan will be honoured and the payments will be

made strictly as per the timelines mentioned in the Resolution

Plan including the moratorium.

10. Dis-regarding the timelines of payment mentioned in the

approved Resolution Plan, the Applicant started threatening

the Applicant that in case payment is not started forthwith,

the Applicant shall move to the Hon’ble NCLT for liquidation of

the Corporate Debtor.

11. That aggrieved by the threats of the Applicant, the Respondent

moved an Application before the Hon’ble NCLT seeking

clarification of the timelines of payment as per the initial

moratorium of 6 months and further to direct the Applicant to

abide by the orders dated 27.02.2023 which is pending

adjudication before the Hon’ble Tribunal.

12. It is submitted that the present contempt application by the

Applicant is meritless and is made on frivolous grounds which

should be dismissed by this Hon’ble Tribunal at the very

threshold.

13. It is submitted that the Applicant has not come to the Court

with clean hands and has concealed material facts from this

Hon’ble Tribunal which has a substantial bearing upon the

facts of the present case.

14. The application by the Respondent seeking clarification of the

moratorium of 6 months and further seeking directions to

Financial Creditor to make financial adjustments as per the

payment and settlement of loan made by the Personal

 Guarantor was filed on 31.03.2023. It is pertinent to mention

that the present contempt petition was filed on 05.07.2023,

i.e., much later than the application filed by the Respondent

seeking clarification before NCLT and therefore, there is no

question of alleged contempt by the Respondent as the

Respondent approached the Hon'ble Tribunal as soon as the

Applicant started demanding payments in violation of the

timelines of the approved Resolution Plan.

15. The condition regarding the Moratorium was accepted by the

Financial Creditor, CoC as well as the Adjudicating Authority

which has not only agreed to the condition of Moratorium

under the resolution plan, but has also accepted and

incorporated the conditions of Moratorium in the final order of

the Resolution Plan dated 27.02.2023. The relevant portion is

produced hereinbelow for the Hon’ble Tribunal ready

reference:

4. Details of Resolution Plan/Payment Schedule

C. Special Conditions

3. The resolution applicant considering the

period required to stabilize the business
operations after being shut down on account of
various issues that arose during the CIRP
period, proposed a moratorium of 6 months.
However, interest during moratorium period
will be paid monthly.
5. Operational creditors settlement amount
The claim received by Resolution Professional was INR
460 Lakhs. The Plan envisages a haircut of 90% on
admitted claims and proposes for payment of INR 46
 Lakhs with a haircut of INR 414 Lakhs and the said
haircut will be applied proportionately to all the
claimants whose claim has been received by Resolution
Professional Upfront payment of 4.6 lakhs shall be made
as per Regulation 38 and the balance amount of 41.4
lakhs shall be made in Quarterly instalments with 6
months moratorium.

PRELIMINARY SUBMISSIONS:

1. The Respondent had received a letter from Applicant dated

28.03.2023, thereby demanding an upfront amount of Rs. 125

Lacs and gave a long stop date of 31.03.2023 with a warning

that in case the payment is not made within the time frame

the application would take the company towards liquidation. A

Copy of the letter dated 28.03.2023 is annexed herewith and

marked as Annexure R/1.

2. The Respondent immediately responded to the above-

mentioned letter of the Applicant thereby stating facts of the

initial moratorium and requesting the Applicant about not

giving such threats to the Respondent. The response dated

29.03.2023 is annexed herewith and marked as Annexure

R/2.

3. Apart from the issue of the moratorium, the issue of the

Personal Guarantor also needed clarity as Mr. Harmeet Singh,

ex-director of the Corporate Debtor who also stood as a

Personal Guarantor to the loan taken by the Respondent from

 the Applicant vide Guarantee Agreement dated 25.04.2015

had paid an OTS of Rs. 6 crores to settle the loan amount from

the SBI. A copy of the Guarantee Agreement is annexed

herewith and marked as Annexure R/3.

4. It is pertinent to mention that during one of the hearings in

the present Company Petition, dated 20.07.2022, the counsel

for Mr. Harmeet Singh submitted before the Hon’ble Tribunal

that State Bank of India has resolved the issue of Guarantee

with Mr. Harmeet Singh and State Bank of India will be

issuing the “No-Dues Certificate” within the course of day. A

copy of the Order dated 20.07.2022 is annexed herewith and

marked as Annexure R/4.

5. It is submitted that the Respondent was informed that Sh.

Harmeet Singh, in the year 2022, had paid off one-time

settlement amount of Rs. 6 Crores towards the loan against

which the Financial Creditor had issued a NOC as well. The

relevant documents of the issuance of NOC are annexed

herewith and marked as Annexure R/5 (colly).

6. It is submitted that when the Respondent apprised the above

said facts to the Applicant and asked about the payment of Rs.

6 crores from Sh. Harmeet Singh and further asked why the

Applicant did not disclose the said fact before the Hon’ble

Tribunal, the Applicant threatened the Respondent to make

 the entire payment as per the approved Resolution Plan and

further told the Respondent that there shall be no

adjustments towards the loan amount.

7. Even otherwise, the Resolution Plan bears a cardinal

conundrum regarding the OTS of the loan made by the

personal guarantor, Sh. Harmeet Singh as the date when the

Resolution Plan was passed the Bank which was also the sole

COC it had total dues amounting to Rs. 9.83 crores. The Bank

did not take into account the Rs. 6 crores it has already

received by the Personal Guarantor against the loan of

Corporate Debtor and did not adjust the same with the total

loan of Rs. 9.83 crores. An OTS performed against the loan

also implies that the entire loan stands settled, however, in the

present case the Bank performed the OTS with the Personal

Guarantor without informing or involving the Respondent

(Corporate Debtor) in the said settlement. In fact, on the date

of the approval of the Resolution Plan the total balance of loan

to be paid was only Rs. 3.83 as against Rs. 9.83 crores.

8. Therefore, pursuant to the moratorium, the Successful

Resolution Applicant requires clarity regarding the total

amount of payments to be made. The Applicant in the present

case is a Government PSU Bank being State bank of India and

such a Bank cannot involve in an action which will culminate

into unjust enrichment to the extent of an additional Rs. 6

 crores despite having received the same amount from the

Personal Guarantor.

9. It is submitted that the Applicant has very clandestinely not

adjusted or appropriated the amount of Rs. 6 Crores which is

paid against the same loan amount, and had in fact hidden

the amount of Rs. 6 Crores in a separate account, to which,

the Respondent had no knowledge.

10. It is submitted that the legal implication of the payment of Rs.

6 Crores is that the Applicant has already received an amount

of Rs. 6 Crores and there is no question of initial payment or

other payments as upfront payment of Rs. 6 Crores can be

approbated by the Applicant.

PARA WISE REPLY:

1. That the contents of the para under reference are denied to

the extent that the Respondent has committed any contempt

of the order of the Hon’ble Tribunal and the respondent is

strictly adhering to the timelines mentioned in the approved

Resolution Plan. It is stated that it is the Applicant who has

not disclosed material facts before the Hon’ble Tribunal which

has substantial bearing upon the present case. The Applicant

was violated the rule of equity and has not come before the

Hon’ble Tribunal with clean hands.

2. That the contents of the para under reference are replied

hereinbelow:

a. That the contents of the sub-para under reference are

matter of record and hence needs no reply.

b. That the contents of the sub-para under reference are

matter of record and hence needs no reply.

c. That the contents of the sub-para under reference are

matter of record and hence needs no reply.

d. That the contents of the sub-para under reference are

matter of record and hence needs no reply.

e. That the contents of the sub-para under reference are

matter of record and hence needs no reply.

f. That the contents of the sub-para under reference are

matter of record and hence needs no reply.

g. That the contents of the sub-para under reference are

matter of record and hence needs no reply.

h. That the contents of the sub-para under reference are

matter of record and hence needs no reply.

i. That the contents of the sub-para under reference are

matter of record and hence needs no reply.

j. That the contents of the sub-para under reference are

matter of record and hence needs no reply.

k. That the contents of the sub-para under reference are

matter of record and hence needs no reply.

3. That the contents of the para under reference are denied in

its entirety. It is submitted that the Respondent shall be

making the payment strictly as per the terms and timelines

stipulated in the approved Resolution Plan which is reiterated

hereinbelow:

4. Details of Resolution Plan/Payment Schedule

C. Special Conditions

1. The Resolution Plan shall not have any conditions

precedent and shall be binding on Resolution Applicant

even if all the exemptions and reliefs sought by the

Resolution Applicant are not granted by the Hon'ble

NCLT Bench.

2. The resolution plan envisages repayment of dues of the

financial creditor namely State Bank of India in the

following manner:

 Upfront Payment INR 125 Lakhs

 Converted into WCTL INR 358.11 Lakhs

 Cash Credit of INR 500 Lakhs to be continued

 Total Principal outstanding INR 858 Lakhs

3. The resolution applicant considering the period required

to stabilize the business operations after being shut

down on account of various issues that arose during the

CIRP period, proposed a moratorium of 6 months.

However, interest during moratorium period will be paid

monthly.

5. Operational creditors settlement amount

 The claim received by Resolution Professional was INR

460 Lakhs. The Plan envisages a haircut of 90% on

admitted claims and proposes for payment of INR 46

Lakhs with a haircut of INR 414 Lakhs and the said

haircut will be applied proportionately to all the

claimants whose claim has been received by Resolution

Professional Upfront payment of 4.6 lakhs shall be made

as per Regulation 38 and the balance amount of 41.4

lakhs shall be made in Quarterly instalments with 6

months moratorium.

4. That the contents of the para under reference are matter of

record and needs no reply. It is submitted apart from the

averments made by the Applicant in the said para, it has very

clandestinely omitted the 6 months of initial moratorium

period that has been approved by the CoC and the Hon’ble

Tribunal. It is further submitted that the Applicant was the

sole Financial Creditor and CoC of the Corporate Debtor

which has approved the plan and therefore, any changes,

modifications, payment timelines made in the resolution plan

was approved by the Applicant.

5. That the contents of the para under reference is denied in its

entirety. It is denied that the Respondent has made any

contempt of the Hon’ble Tribunal or failed to honour the

payment timelines mentioned in the approved Resolution

 Plan. It is pertinent to mention that the Applicant has failed

to disclose the fact that it has received Rs. 6 crores out of the

loan amount of Rs. 9.83 crores from the Personal Guarantor

to the said loan during the time when the resolution plan was

pending approval before the Hon’ble NCLT. The Applicant has

not approached the Hon’ble Tribunal with clean hands and

wants to have double recovery of the loan amount apart from

the agreed amount mentioned in the resolution plan.

6. That the contents of the para under reference are denied in

its entirety. It is denied that the Respondent has deliberately

not complied with directions and order of this Hon’ble

Tribunal and for that the Respondent shall be held in

contempt. It is submitted that the Respondent has the

highest regards for the Courts and law of the land and

therefore there is neither any willfulness or deliberate attempt

or action on the part of Respondent which can attract

contempt.

7. That the contents of the para under reference is denied in its

entirety. The present application has been made malafide and

to abuse the process of law. The present application is liable

to be rejected both at the threshold and upon merits also.

REPLY TO THE PRAYER:

Last para which is the prayer is denied being wrong, baseless,

unwarranted, unfounded and uncalled for in the eyes of the law

and the present application should be dismissed with costs as there

is no deliberate wilfulness on the part of the Respondent of the

direction of the Hon’ble Tribunal and also for non-compliance of

Order dated 27.02.2023.

In view of the above, its most respectfully prayed that the Hon’ble

Court may be pleased to dismiss the present application of the

Applicant with heavy costs in the interest of justice.

RESPONDENT

NEW DELHI
DATED:
THROUGH:

(ARCHER JURISTS LLP)

Advocates & Solicitors
Rohitt Kumar Yadav, Ankit Sibbal
Advocates
Off:- C-10/4, Vasant Vihar,
New Delhi-110057.
Mob:- 9818133353
info@archerjurists.com
 IN THE HON’BLE NATIONAL COMPANY LAW TRIBUNAL,
PRINCIPAL BENCH, NEW DELHI
CONTEMPT PETITION NO. __ OF 2023
IN
CP NO. 1236 OF 2016
IN THE MATTER OF: -
MR. NITIN KHANDELWAL
… OPERATIONAL CREDITOR
VERSUS
M/S. MAINI CONSTRUCTION EQUIPMENTS PRIVATE LIMITED
… CORPORATE DEBTOR
AND
STATE BANK OF INDIA …
APPLICANT
VERSUS
AJAY MAINI …
CONTEMNOR

AFFIDAVIT

I, Ajay Maini aged about 54 years, S/o Late Shri P.L. Maini, R/o

J06/19, Fourth Floor, DLF Phase-2, Sikanderpur Ghosi (68),

Gurgaon, Haryana- 122002, presently at New Delhi, do hereby

solemnly affirm and declare as under:-

1. That I am the Successful resolution Applicant in the above

noted case and I am well conversant with the facts and

circumstances of the case. Hence, I am competent to depose

this affidavit.

2. That the contents of the accompanying Reply has been

drafted by my counsel under my instructions which have

been read by me, which I have understood in my vernacular

language. I further state that the averments made therein

are true and correct to the best of my knowledge and belief.

3. That the contents of the Reply may kindly be read as part

and parcel of this affidavit as the same are not being

reproduced herein for the sake of brevity.

4. That the documents attached with the accompanying

application are the true copies of their respective originals.

DEPONENT

VERIFICATION:

Verified at New Delhi on this ___ day of August, 2023 that the

contents of my above affidavit are true and correct to the best of

my knowledge and belief and nothing material has been

concealed therefrom.

DEPONENT