2020 (5) TMI 4 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT - The loans were applied for by individual borrowers for varying amounts, and a statement of every account has been maintained separately. The amounts were disbursed into individual accounts and the installment due would be transferred automatically to the Developer under standing Instructions As per clause 2.9 of their agreement, the liability to pay EMIs was that of the borrower. The default giving rise to the financial debt is due from the loanee and not from the Developer. The transaction relied upon does not make the Respondent company liable to be proceeded u/s 7 of the Code. Filing of such a petition is an abuse of the process of law - Petition rejected.

Summary

Issues Involved:
1. Petition filed by Financial Creditor seeking Corporate Insolvency Resolution Process of the Corporate Debtor.
2. Disbursement of loans to borrowers for purchasing flats.
3. Tripartite agreement creating a lien over the flat for repayment security.
4. Default by 14 borrowers in repayment leading to the petition.
5. Corporate Debtor's defense against the petition.
6. Analysis of the arguments presented by both parties.
7. Comparison with a previous judgment.
8. Decision of the Tribunal to reject the petition.

Issue 1: Petition for Corporate Insolvency Resolution Process
The petition was filed by the Financial Creditor seeking Corporate Insolvency Resolution Process of the Corporate Debtor due to default by 14 borrowers in repaying the loans disbursed for purchasing flats. The Financial Creditor sought to recover the overdue amount from the defaulting borrowers through the Corporate Insolvency Resolution process.

Issue 2: Disbursement of Loans
Financial assistance was extended to various allottees by the Financial Creditor to facilitate the purchase of flats. Loans of varying amounts were disbursed to borrowers, and a lien over the flat was created through a Tripartite agreement involving the Builder. The amounts were released to the Developer upon demand raised by the borrowers for installment payments.

Issue 3: Tripartite Agreement and Lien
A tripartite agreement was executed between the borrower, Corporate Debtor, and Financial Creditor, stipulating that in case of default, the property allotment would be canceled, and any refund due would be appropriated towards the funds advanced by the Financial Creditor. This agreement created a security mechanism for loan repayment.

Issue 4: Default by Borrowers
Fourteen borrowers were in default regarding their loan repayments, leading to the Financial Creditor filing the petition for Corporate Insolvency Resolution Process against the Corporate Debtor to recover the outstanding amounts from the defaulting borrowers.

Issue 5: Corporate Debtor's Defense
The Corporate Debtor contested the petition, denying any financial debt owed to the Financial Creditor. They argued that the transactions did not fall under the Insolvency and Bankruptcy Code's ambit, and there was no default on their part. The Corporate Debtor claimed that the financial assistance was granted to individual borrowers for booking units and that the default in EMIs by the borrowers was not their responsibility.

Issue 6: Analysis of Arguments
The Tribunal found merit in the Corporate Debtor's arguments, highlighting that the loans were applied for individually by the borrowers, and the funds were disbursed to the Corporate Debtor as per standing instructions. The Tripartite agreement served as a security measure, and the liability for EMIs rested with the borrowers, not the Corporate Debtor.

Issue 7: Comparison with Previous Judgment
A previous judgment was cited by the Financial Creditor, but the Tribunal noted the differences in the cases. The previous case involved a Subvention Scheme where the Corporate Debtor was jointly liable for EMI payments. In contrast, in the present case, individual borrowers were responsible for their EMIs, absolving the Corporate Debtor of liability.

Issue 8: Tribunal's Decision
The Tribunal rejected the petition, stating that the transaction did not make the Corporate Debtor liable under section 7 of the Code. It deemed the petition an abuse of the legal process and ordered the file to be consigned to the record room, thereby dismissing the petition for Corporate Insolvency Resolution Process.

This detailed analysis covers the key issues involved in the judgment, providing a comprehensive understanding of the legal proceedings and the Tribunal's decision.