2021 (5) TMI 728 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - non-issuance of NOC by the Banks, to which the assets of the Corporate Debtor is hypothecated - existence of debt and dispute or not - HELD THAT - The Bench understands that the whole substratum of the Petition is based on an Agreement between the parties of 20.12.2018 which is broadly an Agreement for sale for which money has been given by the Petitioner by way of an inter corporate loan. This Agreement has a clear-cut clause that in the event of non-issuance of NOC by the Banks, to which the assets of the Corporate Debtor is hypothecated and the final asset purchase transaction not materializing between parties, the amount will be treated as Inter Corporate Loan carrying an interest of 18% per annum. NOC was required from the Bank to acquire the assets of the Corporate Debtor by the Petitioner and only thereafter an Agreement was to be executed for purchase of assets. The Bench also notes that it was abundantly clear that both the parties had agreed to treat the amount as a 'loan' with an agreed rate of interest to be paid - The obtaining of an NOC by the Corporate Debtor from the Banks to which the assets were hypothecated was the primary and only major condition before executing the sale transaction as per the Agreement arrived between the Parties. It is for the non-obtaining of NOC by the Corporate Debtor that the sale transaction could not be executed and, therefore, the agreement was terminated as per the relevant clause of the agreement and demand was raised vide letter dated 09.01.2020 for paying the default amount along with interest within 30 days. The Bench also notes that the Corporate Debtor in its financial statement has recorded and admitted that it to be a financial debt. The Petitioner has not received the outstanding Debt from the Corporate Debtor and that the formalities as prescribed under the Code have been completed by the Petitioner, this Petition deserves 'Admission'. Petition admitted - moratorium declared.

Summary

Issues Involved:
1. Whether the amount advanced by the Petitioner to the Corporate Debtor constitutes a "financial debt" under the Insolvency and Bankruptcy Code (IBC).
2. Whether there has been a "default" in repayment of the said financial debt by the Corporate Debtor.
3. Whether the Corporate Insolvency Resolution Process (CIRP) should be initiated against the Corporate Debtor.

Issue-wise Detailed Analysis:

1. Financial Debt:
The Petitioner, Autade Sugars Private Limited, filed a Section 7 application under the IBC against Fabtech Sugar Limited, claiming an outstanding debt of ?39.56 crores, including interest at 18% per annum. The core of the dispute revolves around whether the amount advanced by the Petitioner qualifies as a "financial debt." The Tribunal noted that the agreement between the parties dated 20.12.2018 explicitly stated that the amount advanced would be treated as an Inter Corporate Loan bearing interest at 18% per annum in the event of non-issuance of NOC by the banks and the subsequent non-materialization of the asset purchase transaction. This was further corroborated by the Corporate Debtor's financial statements and the independent auditor's report, which treated the amount as an Inter Corporate Loan. Thus, the Tribunal concluded that the amount advanced by the Petitioner is indeed a financial debt under Section 5(8) of the IBC.

2. Default:
The Tribunal examined whether there was a default in repayment of the financial debt. It was observed that the Corporate Debtor had acknowledged the debt in its financial statements and balance sheets, treating it as a short-term borrowing. The Tribunal noted that the Corporate Debtor failed to obtain the necessary NOCs from the banks, which was a primary condition for the execution of the sale transaction. Consequently, the agreement was terminated, and the Petitioner demanded repayment of the debt along with interest. The Corporate Debtor's argument that the amount was part of a sale-purchase transaction and not a loan was rejected. The Tribunal found that the Corporate Debtor had defaulted in repaying the financial debt as per the terms of the agreement.

3. Initiation of CIRP:
Given the establishment of financial debt and default, the Tribunal considered whether to initiate the CIRP against the Corporate Debtor. The Tribunal referenced a similar case before the NCLAT, where it was held that amounts paid under an agreement to sell, which were to be refunded with interest in case of non-materialization of the transaction, constituted financial debt. The Tribunal found that the present case was analogous, as the agreement had a clause for treating the advanced amount as a loan with interest if the transaction did not materialize. The Tribunal was satisfied that the Petitioner had established the existence of a financial debt and default, and that the formalities under the IBC had been completed. Consequently, the Tribunal admitted the petition and initiated the CIRP against the Corporate Debtor.

Conclusion:
The Tribunal ordered the initiation of the CIRP against Fabtech Sugar Limited, appointing Mr. Ritesh R. Mahajan as the Interim Resolution Professional (IRP). The provisions of the moratorium under Section 14 of the IBC were made operative, prohibiting the institution of any suits or the transfer/encumbrance of the Corporate Debtor's assets. The IRP was directed to perform duties as assigned under the IBC and report progress within 30 days. The petition was allowed, and the CIRP commenced from the date of the order.