9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (4) TMI 1450 - Tri - Insolvency and BankruptcySeeking directions of this Hon'ble Tribunal to the Respondent to admit the claim filed by the Applicant as a financial creditor - reconstitution of the Committee of Creditors (COC) of the Corporate Debtor by inducting the Applicant as a member - whether Piramal Capital and Housing Finance Ltd. (earlier known as DHFL/Applicant) is a Financial Creditor in terms of section 5(7) of the Code? - Section 60 (5) of the Insolvency and Bankruptcy Code, 2016, as amended (IBC) read with Rule 11 of the National Company Law Tribunal Rules, 2016. HELD THAT - This Tribunal sought to expand the scope of transaction audit report and directed the RP to conduct a transaction with relation to the transaction between DHFL and Corporate Debtor. The Transaction auditor has filed its report on 09.03.2022, the report pointed out that the Corporate Debtor's debt was repaid by the Rite Developers Private Limited and hence accounting entry in the books of accounts declared that the Corporate Debtor has no liability towards the debt. The transaction auditor has also pointed out that in a prior securitisation application filed by the Corporate Debtor before DRT, Mumbai specifically contained an averment that due to failure on part of the DHFL in disbursement of the complete loan amount, the Corporate Debtor wrote a letter to its sister concern namely RDPL seeking assistance. Further, the transaction auditor has also pointed out that RDPL directed to utilize the amount lying in the account of DHFL to settle the dues of the Corporate Debtor. As the amount of the repayment of the loan of the AREDPL by RD PL is disputed by the DHFL and accordingly the Corporate Debtor has filed application with Debt Recovery tribunal, Mumbai with Case No. SA/74/2021 dated 30th April 2021 - It has also been observed in the Securitisation Application filed by the AREDPL in the DRT, Mumbai, it is specifically averred that due to failure on part of DHFL in disbursing the complete loan amount, the AREDPL decided to repay the said loan to DHFL and therefore, the AREDPL wrote a letter to its sister concern i.e. RDPL seeking assistance. The Company AREDPL states that RDPL informed the Corporate Debtor that an amount of Rs. 38,51,98,790 was lying as credit in the account of the DHFL and directed to utilize the same to settle its dues with DHFL because RDPL is also a Corporate guarantor in the loan sanctioned by DHFL to Corporate Debtor and the process was carried out. Sanction of Rs. 100.00 Crore Term Loan to Corporate Debtor with Net worth of Rs. 2.10 Crores - HELD THAT - The Corporate Debtor was sanctioned term loan of Rs. 100.00 Crores when the Corporate Debtor was having Net worth of Rs. 2.10 Crores only. It is clear that the Corporate Debtor had weak financial condition, did not possess sound past track record and the asset base, Net worth sufficient to qualify loan of Rs. 100.00 and did not possess the repayment capacity. Violation of the terms and Conditions of the Sanction Letter - HELD THAT - It can be seen from that the Corporate Debtor has not complied with the Terms and Conditions of the Sanction Letters. Apart from the Company it was also the responsibility of the DHFL to see that the Terms and Conditions of the Sanction letter are followed in true spirit. Opening of Escrow Account as per the Sanction letter was one of the critical requirements for the loan transactions in case of the company involved in the real estate development projects. Non opening of the escrow account is itself a red flag transaction. It is very surprising indeed DHFL being a financial institution have ignored this and have not forced for the opening of Escrow Account. Disbursement of the Loan after the Account was classified as NPA - HELD THAT - It has been observed that the account of Corporate Debtor was classified as NPA in November 2018 itself. The first loan disbursement was made on 11/06/2018 and the last disbursement was made on 10/04/2019 after the account was classified as NPA. Total of Rs. 9.50 Crores have been disbursed after the account was classified as NPA by the DHFL - It can be seen the loan amount was not used for the purpose for which the loan was sanction. This tranche of Rs. 9.50 Crores was disbursed even when the other conditions mentioned in Page 6 of 26 of Sanction letter remained non-complied. As informed by the erst while management of the Company the said transaction was undertaken on behest of DHFL. Mortgage till 38th floors whereas the building height cannot be more than 32 meters - HELD THAT - The series of correspondence and exchange of letters between the Corporate Debtor and its sister concern RDPL establish the fact that RDPL has provided financial assistance to the Corporate Debtor and consequently, the amounts lying in the account of DHFL were adjusted towards the repayment of the loan of the Corporate Debtor. This Bench takes on record the internal correspondence between Corporate Debtor and its sister concern namely RDPL and the books of accounts of Corporate Debtor dated 31.03.2021. It is not the case of the applicant that his right of repayment of the outstanding amounts is lost by this adjustment. The applicant can exercise and enforce the debt outstanding from the RDPL. This Bench is of the view that the claim of the applicant namely Piramal Capital Housing Finance Limited cannot be admitted - Application dismissed.
Issues Involved:
1. Whether Piramal Capital and Housing Finance Ltd. (earlier known as DHFL/Applicant) is a Financial Creditor in terms of section 5(7) of the Insolvency and Bankruptcy Code, 2016. 2. Whether the claim of Piramal Capital & Housing Finance Limited should be admitted as a financial creditor. 3. Examination of discrepancies in the financial statements and books of accounts of the Corporate Debtor. 4. The role of the Interim Resolution Professional (IRP)/Resolution Professional (RP) in verifying and admitting claims. 5. The impact of internal communications and transactions between the Corporate Debtor and its sister concern RDPL on the claim. Detailed Analysis: 1. Financial Creditor Status: The primary issue is whether Piramal Capital and Housing Finance Ltd. (formerly DHFL) qualifies as a Financial Creditor under section 5(7) of the Insolvency and Bankruptcy Code, 2016. The Applicant argued that it had provided a loan of INR 100 crores to the Corporate Debtor, which was secured by a registered mortgage and hypothecation. The Applicant disbursed INR 32.50 crores in various tranches, and the Corporate Debtor defaulted on repayments, leading to the loan being classified as a non-performing asset (NPA). 2. Claim Admission: The Applicant submitted a claim for INR 48,63,51,064 as a financial debt. However, the Respondent (RP) did not admit the claim, citing discrepancies in the financial records and the assertion that the debt had been repaid by RDPL, a corporate guarantor. The RP pointed out several discrepancies, including the non-compliance with the escrow account condition, lack of monitoring mechanisms, and disbursements made after the account was classified as NPA. 3. Discrepancies in Financial Statements: The RP highlighted serious discrepancies in the financial records, including the non-reflection of the loan in the unaudited balance sheet for the year ending 31st March 2021. The RP also noted that RDPL had made a payment of INR 38,51,98,790, which was allegedly towards the loan availed by the Corporate Debtor, but the Applicant claimed it was for a separate loan availed by RDPL. 4. Role of IRP/RP: The Tribunal noted that the role of the IRP/RP is not adjudicative but rather to collate and verify claims based on available documents. The RP sought legal opinions and conducted a transaction audit to verify the claim. The transaction audit report pointed out that the Corporate Debtor's debt was repaid by RDPL, and the loan amount was used for purposes other than the sanctioned project, raising concerns about the legitimacy of the transactions. 5. Internal Communications and Transactions: The internal communications between the Corporate Debtor and RDPL indicated that RDPL provided financial assistance to the Corporate Debtor, and the amounts lying in the account of DHFL were adjusted towards the repayment of the loan. The Tribunal took note of these communications and the books of accounts, which showed that the outstanding loan was adjusted by RDPL. Conclusion: The Tribunal concluded that the claim of Piramal Capital & Housing Finance Limited could not be admitted as a financial creditor. The internal correspondence and financial records demonstrated that the loan had been repaid by RDPL, and the Corporate Debtor's balance sheet did not reflect the outstanding liability. The Tribunal dismissed I.A. 182 of 2022, vacated all interim prayers, and disposed of I.A. 308 of 2022.
|
