9911796707
TMI Blog2019 (1) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... uptcy (Application to Adjudicating Authority) Rules, 2016. 2. The Petition states that the Petitioner sanctioned a loan in favour of the Corporate Debtor for Rs. 60,00,00,000/- on 30.09.2013 vide a Loan Agreement dated 30.09.2013 and an Addendum Agreement dated 1.10.2013. The said Loan Agreement carries an interest of 18.10% p.a. repayable within 60 months from the date of disbursement. The Corporate Debtor was irregular in making repayments and committed a breach in making payment towards the EMI with respect to the aforesaid Loan facility. No EMI with respect to the said Loan was paid after 31.03.2016. 3. The said loan was secured by registered mortgage over residential premises, garage and a store room in the building known as "Palais Royal" situated at plot no. 5B and 6 at Shree Ram Premises, Worli Estate, Lower Parel, Mumbai owned by the Corporate Debtor. A loan agreement dated 30.09.2013 was executed between the Petitioner and the Corporate Debtor. Subsequently, on 1.10.2013, an Addendum Agreement was executed between the parties to make Mr. Vikas Kasliwal as a guarantor for securing the loan. On 17.10.2013, a Share Pledge Agreement was entered into between Mr. Vikas Kasliw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the SARFAESI Act, 2002 if the borrower is willing to settle the outstanding dues. b) That the Petitioner had advanced loans to the Corporate Debtor and its sister concerns at various instances and these were shown as housing loans. When the Corporate Debtor and its sister concerns got embroiled in various legal disputes, further loans were disbursed by the Petitioner in instalments so that the Corporate Debtor and its group companies could pay/ repay the interest on the original loan and the loans accounts to the group companies would remain evergreen. The relationship between the Corporate Debtor and the Petitioner was more than that of a Lender and Borrower. 9. The Petitioner has annexed the Statement of Account of the Corporate Debtor from the period 30.09.2013 to 17.07.2018. 10. The Corporate Debtor had requested time to file reply on 09.10.2018 as well as on 05.11.2018 and thereafter one week time was granted by this Bench to file the same. However, the Corporate Debtor did not file any reply till 13.11.2018 (last date of hearing). 11. On 13.11.2018, the Corporate Debtor raised the following oral arguments: a) The Amount of debt shown in the CIBIL Report is Rs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition wherein debt and default is established. (c) The MOU dated 24.09.2015 was entered into between SRUIL and Adhita Realty Pvt. Ltd. (a company run by Mr. Avinash Bhosale who was a close associate of the Petitioner.) and it was agreed that as compensation for services rendered, Mr. Bhosale would receive flats from SRUIL at a very reasonable price etc. This Bench has given serious consideration to this argument but the MOU dated 24.09.2015 and it was not mentioned there about the loan advanced by to the Corporate Debtor. In fact, it was an agreement between the builder and the purchasers and hence the contention of the Corporate Debtor that the loans would be paid only when the conditions of MOU were satisfied does not have legs to stand. (d) The Corporate Debtor further submits that it was agreed between all the parties that the Petitioner will provide loans to various companies for the express purpose of funnelling the funds back to itself via SRUIL- solely for the purpose of maintaining the account of SRUIL regular and evergreen .The structure adopted by the Petitioner to evergreen the accounts of SRUIL is in contravention of banking/ financial/ accounting norms for finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then any defence which challenges the exact amount in default is irrelevant and extraneous. In this regard, para 30 of the decision of the Hon'ble Supreme Court in Innoventive Industries Ltd v. ICICI Bank and Ors., AIR 2017 SC 4084 was relied upon by the Petitioner, which is reproduced as follows: "On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is "due" i.e payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise" The Petitioner further relied on the decision of the Hon'ble NCLAT in the case of Mr. Ajay Agarwal v. Central Bank of India and the State Bank of India, Company Appeal (AT) (Insolvency) No. 180 of 2017. In this case, the Appellant raised a disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ures of SRUIL. Further, Clause 16.2 of the Debenture Pledge Agreement states as follows: Without limiting Clause 16.1, neither the liability of any pledgor(s) nor the Confirming Party nor the validity or enforceability of this Agreement shall be prejudiced, affected or discharged by: (f) The insolvency or liquidation or any incapacity, disability or limitation or any change in the constitution or status of any of the Pledgor(s) or the Confirming Party, as the case may be other than to the extent required by law;" The Petitioner contended that in light of the clear contractual stipulation as set in the Debenture Pledge Agreement, the admission of liquidation proceedings against SRUIL can have no bearing whatsoever on the Corporate Debtor's liability. 16. Findings: Looking at the case, the contentions raised by both the parties, this Bench is of a clear view that the "debt" and "default" are clearly established. The petition deserves to be admitted on all counts. 17.This Adjudicating Authority, on perusal of the documents filed by the Creditor, is of the view that the Corporate Debtor defaulted in repaying the loan availed and also placed the name of the Insolvency Resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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