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2018 (8) TMI 591 - Tri - Insolvency and BankruptcyCorporate insolvency process - Held that - The claim of the FCs that the FC-1 had granted a loan to the tune of ₹ 31, 66,000/- to the CD on 16-05-2013 and FC 2 had granted a loan to the tune of ₹ 72,32,000/- to the CD on 27-05-2013 on the terms and conditions, enumerated in the Annexures B and B-1, in a very poor light which , in turn, throw its weight more and more not behind the claim of the applicants herein -but-- behind the claims of the CD instead. It may be noticed here that the FCs also placed enormous reliance on the bank statements to show that the CD did receive the amounts, so stated in the resolution dated 16-05-2013 and the resolution dated 27-05-2013, and that too, under terms and conditions, incorporated therein. According to the FCs, since there was clear correlation between the bank statements and the statements, made in the Annexure B and B-1, there cannot be any escape from the conclusion that the CD had actually received the amounts, so stated in the Annexure B and B-1, and that too, on the terms and conditions, stated therein. Since there was no evidence whatsoever from the side of the CD to show that it ever repaid such loans, there was clear default in repayment of such loans which, in turn, provides this proceeding a robust basis requiring this Authority to initiate CIRP against the CD. I have considered such submission in the light of discussion, made hereinbefore and have already found that all the basic documents , tendered from the side of FCs, fail to establish that the CD had actually accepted the aforesaid loans, agreeing to the terms and conditions, specified in Annexure-B and B-1. Being so, when the primary evidence, pressed into service from the side of the FCs ,failed to show that the CD had actually received the amounts, so stated in the Annexure B and B-1, and that too, only under the terms and conditions, the bank statements, which are evidently in the nature of corroborative evidence only, could not do the role of resurrecting the case of the FCs. In such a situation, no difficulty, whatsoever in rejecting the argument, from the side of FC which structured taking bank statements as its fulcrum. Consequently, the claims of FCs that the FC1 had granted the CD a loan to the tune of ₹ 31,66,000/-on the basis of resolution dated 16-05-2013 and the FC-2 had also granted it a loan to the tune of ₹ 72,32,000/- on the basis of resolution, dated 27-05-2013 on the terms and condition enumerated in the Annexure-B and B-2 and that the CD failed to repay such loans in accordance with terms and conditions, being found untenable in view of materials available on record, are rejected. This proceeding is found devoid of merit and same is accordingly dismissed.
Issues Involved:
1. Application under Section 7 of the Insolvency & Bankruptcy Code, 2016. 2. Existence of financial debt and default. 3. Validity of the loan agreements and resolutions. 4. Jural relationship between the parties. 5. Allegations of suppression of vital information. 6. Compliance with the Indian Contract Act, 1872. 7. Authority of the director to secure loans. 8. Settlement attempts. Issue-wise Detailed Analysis: 1. Application under Section 7 of the Insolvency & Bankruptcy Code, 2016: The application was filed under Section 7 of the Insolvency & Bankruptcy Code, 2016, read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016. The applicants, M/s. Shreyans Realtors Pvt. Ltd. (FC1) and M/s. Otis Developers (FC2), sought initiation of Corporate Insolvency Resolution Process (CIRP) against M/s. Saroj Realtors and Developers Pvt. Ltd. (CD) for default in repayment of debt provided in 2013. 2. Existence of Financial Debt and Default: The FC1 and FC2 claimed to have granted loans of ?31,66,000 and ?72,32,000 respectively to the CD in 2013, which were not repaid as per the agreed terms. The CD denied securing such loans and disputed the existence of any financial debt. The CD adopted a Board resolution on 29-03-2014, disputing the loans and refusing repayment as per the repayment schedules. 3. Validity of Loan Agreements and Resolutions: The FCs provided resolutions dated 16-05-2013 and 27-05-2013 to support their claims of loan agreements with the CD. However, the CD contested the validity of these resolutions, arguing that there was no authorization from the Board of Directors for such loans. The Tribunal found no evidence on record to show that the CD's Board had authorized the director to secure loans on the specified terms. 4. Jural Relationship Between the Parties: The CD argued that there was no jural relationship between the parties, as the loans were not authorized by the Board. The Tribunal agreed, stating that without proper authorization, the director's actions could not bind the company, and thus, no valid financial debt existed. 5. Allegations of Suppression of Vital Information: The CD contended that the FCs had suppressed vital information and did not come with clean hands. The Tribunal noted that the FCs failed to establish the existence of a valid contract, further supporting the CD's claims of suppression. 6. Compliance with the Indian Contract Act, 1872: The Tribunal examined the loan agreements under Sections 10, 13, and 14 of the Indian Contract Act, 1872, which require free consent and lawful consideration. The Tribunal found that the FCs failed to prove that the CD had agreed to the terms and conditions of the loans, thus failing to meet the requirements of a valid contract. 7. Authority of the Director to Secure Loans: The Tribunal emphasized that any act done by a director must be authorized by the Board of Directors. In this case, there was no evidence that the director was authorized to secure loans on behalf of the CD. Consequently, the loans could not be considered validly sanctioned to the CD. 8. Settlement Attempts: The parties attempted to settle the dispute amicably during the proceedings, but the settlement was not possible. Therefore, the Tribunal decided to dispose of the matter on merit based on the available materials. Conclusion: The Tribunal dismissed the application, finding it devoid of merit. The FCs failed to prove the existence of a valid financial debt and default, as well as the authority of the director to secure loans. The Tribunal's observations and decisions were made in the context of the present proceeding and would not have any direct bearing on any future proceedings over the same subject matter.
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