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2024 (9) TMI 1607 - Tri - IBCMaintainability of application filed u/s 7 of Insolvency and Bankruptcy Code, 2016 - existence of financial debt or not - Bar under Section 10A of the IBC - Record of Default - Stamping of Loan Agreement - Authorization to Submit the Application. Existence of financial debt or not - HELD THAT - There were a number of adjournments on the ground of some kind of settlement between the parties. Moreover, Ld. Counsel for the Corporate Debtor has even mentioned that the they have already made the part payment and the next installment will be paid by 25.09.2023. Admission of part payments towards loan repayment and further promise to pay next instalment by 25.09.2023 amounts to acknowledgement of existing financial debt - the first defense of the Corporate Debtor that there is no existence of financial debt is rejected. Bar under Section 10A of the IBC - HELD THAT - According to the Repayment Schedule, 1st EMI instalment of Rs. 5,70,00,000/- became payable on 05.01.2021. It is submitted that this instalment was paid by the Corporate Debtor on various occasions till 02.04.2021. Thereafter, 2nd EMI instalment of Rs. 34,20,00,000/- became payable on 05.04.2021. Part Payments were made for this end EMI till 21.06.2021. The 3rd EMI became payable on 05.07.2021 which the Corporate Debtor failed to honour. During the hearing of the matter, this aspect has not been denied by the Corporate Debtor. Thus, the default has occurred on 05.07.2021 and is clearly not barred under Section 10 A of IBC. Record of Default - Claim is neither based on the record of default recorded with the Information Utility nor based on any other record or evidence demonstrating default as per Regulation 2A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT - Admittedly, the financial creditor has not annexed record of default recorded with IU nor any evidence as specified under Regulation 2A. However, financial creditor has annexed the loan sanction letter dated 03.06.2020, loan agreement dated 03.06.2020 duly executed by the Corporate Debtor co-borrower, statement of account evidencing the disbursement of Rs. 190 crores on 23.06.2020 through RTGS No. PID0010824 copy of notice dated 20.01.2022 issued under section 13(2) of SARFAESI Act, 2002, revised payment of schedule dated 12.10.2022 - these documents constitute such other record as required under section 7(3)(a) of the Code. Corporate Debtor has not denied any of the above record, rather had submitted before this Court that part payment of loan has already been made and that next instalment would be paid on 25.09.2023. Therefore, this contention of the Corporate Debtor is also rejected. Stamping of Loan Agreement - HELD THAT - In view of the fact that existence of debt and default has been established, default amount is more than threshold limit of Rs. 1 crore, the contention of mentioning different amount in the notice and in the part IV of the petition is inconsequential. Even then on examining the petition and found that the complete break-up is provided in the Foreclosure Statement at Annex.5 of the Company Petition and the amount mentioned therein does tally with the amounts mentioned in Part IV of the petition. Therefore, this contention of the Corporate Debtor is also rejected. Authorization to Submit the Application - Whether signatory to the petition is not authorized to initiate specific proceedings under IBC? - HELD THAT - It is observed that the Board Resolution at Annexure 8 clearly states that Mr. Uttam Kumar is authorised on behalf of Indiabulls Housing Finance Limited to appear for and/or represent the Petitioner before the National Company Law Tribunal (NCLT), National Company Law Appellate Tribunal (NCLAT) or such other authorities/forums/courts for the cases pertaining to the Code. We are satisfied that petition has been lawfully initiated on the strength of the board Resolution 14.08.2020. Therefore, this contention of the Corporate Debtor is also rejected. Thus, the Petitioner has proved the debt and default and the same was also admitted during the hearing of this petition by the Corporate Debtor. The default is to the tune of Rs. 260 Crores (which is much above the threshold of Rs.1 Crore). We are of the considered view that the Financial Creditor has proved existence of debt and default. Further the debt is in excess of Rs. 1 Crore and thus above the threshold limit mandated in Section 4(1) of the Code. Also the Petition filed is within limitation. Therefore, this company petition is admitted and also looking at the consent given by the Insolvency Professional, Mr. Ravi Prakash Ganti appointed as an IRP, with a direction to the Financial Creditor to pay remuneration to the IRP and his expenses until the constitution of CoC. Petition allowed.
Issues Involved:
1. Existence of Financial Debt 2. Bar under Section 10A of the IBC 3. Record of Default 4. Adequate Stamping of Loan Agreement 5. Authorization to Submit the Application 6. Admission of the Petition and Appointment of IRP Detailed Analysis: 1. Existence of Financial Debt: The Corporate Debtor argued that the debt was disbursed to Gnex Realtech Private Limited, not to them, and that pledging shares does not constitute a "financial debt" under Section 5(8) of the IBC. However, the Tribunal noted that the Corporate Debtor was a co-borrower as per the Loan Agreement dated 03.06.2020, which included the Corporate Debtor in Schedule I as a co-borrower. The Corporate Debtor's admission of part payments and promises to pay further installments were deemed as acknowledgments of the existing financial debt. Therefore, the Tribunal rejected the defense and confirmed the existence of financial debt. 2. Bar under Section 10A of the IBC: The Corporate Debtor contended that the petition was barred under Section 10A of the IBC as the first default occurred on 05.01.2021. The Tribunal examined the Revised Repayment Schedule and found that the default occurred on 05.07.2021, which was not barred under Section 10A. Therefore, this contention was also rejected. 3. Record of Default: The Corporate Debtor argued that the record of default was not provided as required under Section 7(3) of the IBC. The Tribunal clarified that the financial creditor could furnish any record or evidence of default, not necessarily from the Information Utility. The Petitioner had provided sufficient documents, including the loan sanction letter, loan agreement, statement of account, and notice under Section 13(2) of the SARFAESI Act, which constituted "such other record" as required under Section 7(3)(a) of the Code. This contention was thus rejected. 4. Adequate Stamping of Loan Agreement: The Corporate Debtor argued that the Loan Agreement was insufficiently stamped and hence inadmissible. The Tribunal relied on the judgment in Ashique Poonamparambath vs. Federal Bank and held that sufficient documents, such as the loan sanction letter and loan disbursement proof, established the existence of debt and default. Therefore, this contention was also rejected. 5. Authorization to Submit the Application: The Corporate Debtor contended that the petition lacked details of the 'person authorized to submit the application.' The Tribunal found that the Board Resolution at Annexure 8 authorized Mr. Uttam Kumar to represent the Petitioner before the NCLT. Therefore, the petition was lawfully initiated, and this contention was rejected. 6. Admission of the Petition and Appointment of IRP: The Tribunal, satisfied with the evidence of debt and default, admitted the petition. The default amount was Rs. 260 Crores, well above the threshold limit of Rs. 1 Crore. The Tribunal appointed Mr. Ravi Prakash Ganti as the Interim Resolution Professional (IRP) and directed the Financial Creditor to deposit Rs. 5 Lakh towards the initial CIRP cost. The Tribunal also ordered the operation of a moratorium under Section 14 of the IBC, prohibiting various actions against the Corporate Debtor and ensuring the continuation of essential goods or services. Conclusion: The Tribunal admitted the petition for initiating CIRP against the Corporate Debtor, appointed an IRP, and directed the operation of a moratorium. The Tribunal found that the Petitioner had proved the existence of debt and default, and all contentions raised by the Corporate Debtor were rejected.
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