2021 (3) TMI 1120 - AT - IBC

Maintainability of application - initiation of CIRP - amounts paid by the first Respondent on behalf of the Corporate Debtor to the Lender Bank for compliance of the terms of the OTS - Financial Debt or not - Whether the first Respondent being a Purchaser under an Agreement to Sell, executed pursuant to an OTS can claim to be a Financial Creditor as defined under Section 5(7) of the Code? - HELD THAT - There are no illegality or infirmity in the observation made by the Learned Adjudicating Authority that issuance of Notice prior to Section 7 Application is not mandatory as per the provisions of the Code as noted by the Hon ble Supreme Court in Innoventive Industries Ltd. Vs. ICICI Bank and Anr. 2017 (9) TMI 58 - SUPREME COURT . Further, the first Respondent has got issued a legal Notice in October, 2018 prior to filing of the Section 7 Application and the same has not been denied by the Appellant herein - It is evident that though money has been paid under an Agreement to Sell, it is seen that the same was paid by the first Respondent to the Lender Bank only on behalf of the Corporate Debtor and furthermore in the event of the failure on the part of the Corporate Debtor to adhere to the terms of the Agreement, the said consideration amount was to be repaid by the Corporate Debtor alongwith interest in the event the transaction did not materialize. It is seen from the record that a Right to Payment accrued to the first Respondent in terms of Clause 11 of the Agreement. The consideration for the purchase of the Scheduled Property structure together with the plant and machinery standing thereon shall move to the Lender from the first Respondent, at the instance of the Corporate Debtor . Hence, it is seen from the clauses that the Agreement to Sell emanates from the One Time Settlement entered into between the Corporate Debtor and the Lender Bank and it is only in lieu of the consideration paid by the first Respondent to the Lender Bank on behalf of the Corporate Debtor , that the Agreement of Sale for the subject property was executed. Therefore, the contention of the Learned Counsel appearing for the Appellant that the money was not utilized by the Corporate Debtor , but paid to the Lender and as the utilization of money by the Corporate Debtor is a sine qua non and therefore, the debt does not fall within the definition of Transaction as defined under Section 3(33) or under Financial Debt as defined under Section 5(8)(f), is untenable. The debt in question is a Financial Debt . It was also pleaded that the specific intention of the first Respondent was to take over the land with the structures and the plant and machinery so as to commence the business for which purpose the land was initially allotted by TSIIC. Hence, it can be safely construed that the first Respondent cannot be said to be having only a security interest over the assets of the Corporate Debtor . Appeal dismissed.

Summary

Issues Involved:
1. Whether the amounts paid by the first Respondent on behalf of the 'Corporate Debtor' to the Lender Bank for compliance with the terms of the OTS would fall within the definition of 'Financial Debt' under the Code.
2. Whether the first Respondent, being a 'Purchaser' under an Agreement to Sell, executed pursuant to an OTS, can claim to be a 'Financial Creditor' as defined under Section 5(7) of the Code.

Issue-wise Detailed Analysis:

1. Definition of 'Financial Debt':
The Tribunal analyzed whether the amounts paid by the first Respondent on behalf of the 'Corporate Debtor' to the Lender Bank fall within the definition of 'Financial Debt' under the Insolvency and Bankruptcy Code (IBC). The Tribunal relied on the definition provided in Section 5(8) of the Code, which includes any amount raised under any transaction having the commercial effect of borrowing. The Tribunal referenced the Supreme Court's interpretation in 'Pioneer Urban Land and Infrastructure Ltd. & Anr.' which held that Section 5(8)(f) is a residuary provision that includes transactions with a commercial effect of borrowing.

The Tribunal noted that the first Respondent paid the amount to the Lender Bank on behalf of the 'Corporate Debtor' under an Agreement to Sell, which stipulated that the 'Corporate Debtor' would repay the amount with interest if the transaction did not materialize. This arrangement indicated a time value of money and a commercial effect of borrowing, thus qualifying as a 'Financial Debt.'

2. Status as 'Financial Creditor':
The Tribunal examined whether the first Respondent, as a 'Purchaser' under an Agreement to Sell, could be considered a 'Financial Creditor' under Section 5(7) of the Code. The Tribunal emphasized that the definition of 'Financial Creditor' includes entities that have disbursed funds to the 'Corporate Debtor' with the commercial effect of borrowing.

The Tribunal rejected the argument that the first Respondent was not directly involved in the functioning of the 'Corporate Debtor' or its financial restructuring. The Tribunal cited the Supreme Court's judgment in 'Pioneer Urban Land and Infrastructure Ltd. & Anr.' which clarified that any debt with a commercial effect of borrowing falls within the scope of 'Financial Debt,' irrespective of the lender's involvement in the corporate debtor's operations.

The Tribunal also dismissed the contention that the transaction lacked profit, noting that the 'Corporate Debtor' benefitted from the One-Time Settlement (OTS) by paying a reduced amount compared to the outstanding loan, thus profiting from the transaction.

Conclusion:
The Tribunal concluded that the amounts paid by the first Respondent on behalf of the 'Corporate Debtor' to the Lender Bank constituted a 'Financial Debt' under the IBC. The Tribunal also determined that the first Respondent, as a 'Purchaser' under an Agreement to Sell executed pursuant to an OTS, qualified as a 'Financial Creditor' under Section 5(7) of the Code. Consequently, the appeal was dismissed, and the Tribunal upheld the decision of the Adjudicating Authority to admit the Section 7 Application.