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TMI Blog2019 (6) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... ent stamp duty. Mismatch in the principal amount and the interest rate chargeable - HELD THAT:- It is to be clarified that the Adjudicating Authority does not have to ascertain the exact due amount as held by the Hon ble NCLAT in the matter of The Dhar Textile Mills Ltd. vs. Asset Reconstruction Company (India) Limited, Company Appeal (AT) (Insolvency) No. 11 of 2019. The Adjudicating Authority has to satisfy itself that a debt of minimum ₹ 1,00,000/- exists. So the contention of the Corporate Debtor regarding the principal amount and interest rate charged is untenable. As per Section 7 of IBC, a petition has to be admitted if a default has occurred, debt is due, and application is complete, and no disciplinary proceedings are pending against the proposed resolution professional - This Petition reveals that there is a debt as defined in Section 3(11) of IBC. Also, there is a default in this case within the meaning of Section 3(12) of IBC. Though the Corporate Debtor has raised a dispute regarding his liability to pay the debt. However, the dispute is irrelevant for admitting a petition U/S 7 of the Code. The application of the Financial Creditor is complete, amount of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted by the Corporate Debtor. On 5.1.2015, under the MRA, the Corporate Debtor executed an unconditional guarantee. The Financial Creditor called upon GGRPL to pay the outstanding dues through letters dated 16.5.2016, 7.6.2016, 13.7.2016. On 14.6.2016, GGRPL responded to the Financial Creditor, informing it of the initiation of SDR mechanism. 4. The Financial Creditor has further stated that on 9.8.2016, the Financial Creditor sent a demand notice to GGRPL and the Corporate Debtor inter alia directing them to make payment of ₹ 14.65 crores within 7 days of receipt of notice. On 23.8.2016, the Financial Creditor addressed a Notice under Sections 433 and 434 of the Companies Act, 1956 calling upon the Corporate Debtor to make payments of the amounts due in light of the Corporate Guarantee, given on behalf of GGRPL. The Financial Creditor addressed letters dated 8.11.2016, 2.1.2017, 4.1.2017 to GGRPL calling upon it to make payment. 5. It is further stated by the Financial Creditor that on 27.4.2017, the Financial Creditor sent a Notice to the Corporate Debtor inter alia, invoking the corporate guarantee dated 5th January 2015. After that, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 94,95,68,366/- as on March 21st 2018 along with further interest. It is stated that this amount is also borne out by the statement of accounts certified by the Banker s Books of Evidence Act, 1891 and the I.T. Act 2000. 12. The Financial Creditor has stated that another company petition against the Corporate Debtor bearing CP No. 1140/2017 preferred by Reliance Commercial Finance Ltd. which was admitted by this Tribunal s order dated 4.8.2017 stands abated by Hon ble NCLAT s order dated 13th December 2017. Therefore, there are no pending insolvency proceedings against the corporate debtor. 13. The Corporate Debtor did not file a reply even though several opportunities were given for the same. During the hearing the Corporate Debtor raised, inter-alia, following defences: a) The rate of interest as prescribed by the Facility Agreement dated 21.1.2010 and the Master Restructuring Agreement dated 5.1.2015 is 13.25% and 12% respectively. It is submitted that the rate of interest claimed by the Financial Creditor in demand notice dated 23.8.2016 u/s 433, 434 of the Companies Act, 1956 is 36% per annum from 1.8.2016 till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he state. Reference has also been made to the judgment of SMS Tea Pvt. Ltd. v. Chandmari Tea Co. Pvt. Ltd. [(2011) 14 SCC 66]. It is further submitted that since the Deed of Guarantee is insufficiently stamped, the Tribunal should not act upon it. f) It is submitted since the Financial Creditor brought the Deed of Guarantee into the state of Maharashtra from Delhi, the burden of complying with the provisions of Section 18 of the Stamp Act falls on the Financial Creditor. Reference has also been made to Section 30A of the Stamp Act to state the liability to pay stamp duty falls on the Financial Creditor. g) It is also submitted that the right of the Respondent to file its reply has been closed, otherwise the Respondent would have agitated that the Deed of Guarantee is not the same document, that has been executed between the parties and also appears to be forged and fabricated document, for the reasons that it does not bear the stamp of the company.The stamp paper is from Delhi and not from Maharashtra, signature of the person signed also appears to be different from actual signature. h) It is submitted that Form 1, in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of GGRPL under the MRA Agreement (See Clause 3 of the Guarantee at Pgs. 255-256 of the Petition). It is thus a simplicitor promise to pay any debts of GGRPL and not a promise to pay a fixed sum. It is a simple letter of guarantee. Article 57 prescribes that stamp duty of ₹ 100 is payable on a letter of guarantee. d. Section 19(a) of the Maharashtra Stamp Act provides that in respect of an instrument or a copy thereof executed out of the state, the chargeable duty would be the difference between what has been paid outside and what is to be paid within Maharashtra. Thus, only the differential stamp duty is chargeable. In the present case, a stamp duty of ₹ 100/- has already been paid in Delhi (See Stamp at Pg. 253 of the Petition). Article 37 of the Maharashtra Stamp Act equally prescribes stamp duty of ₹ 100/- is payable on a letter of guarantee. There is thus no differential amount of chargeable duty to be collected. For these reasons, the Corporate Debtor s objections on stamp duty are frivolous and liable to be rejected. Thus, no case is made out for impounding the document. e. It is further submitted that Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Creditor was not paid its dues, the Financial Creditor filed the present petition. 18. The contention of the Corporate Debtor that the present petition is barred by the law of limitation does not survive as the guarantee was invoked by the Financial Creditor on 27th April 2017 and the Financial Creditor filed the present petition on 9.4.2018. 19. The proceedings before this Adjudicating Authority are summary in nature. It is pertinent to mention that stamp duty payable and paid on letter of guarantee is ₹ 100 and it has been purchased by the Corporate Debtor. Therefore, the Corporate Debtor has no right to raise the objection of insufficient stamp duty. 20. Concerning the mismatch in the principal amount and the interest rate chargeable, it is to be clarified that the Adjudicating Authority does not have to ascertain the exact due amount as held by the Hon ble NCLAT in the matter of The Dhar Textile Mills Ltd. vs. Asset Reconstruction Company (India) Limited, Company Appeal (AT) (Insolvency) No. 11 of 2019. The Adjudicating Authority has to satisfy itself that a debt of minimum ₹ 1,00,000/- exists. So the contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III. That the provisions of sub-section (1) of Section 14 of IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. IV. That the order of moratorium shall have effect from the date of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 of IBC or passes an order for liquidation of corporate debtor under section 33 of IBC, as the case may be. V. That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of IBC . VI. That this Bench at this moment appoints Mr Vinod Kumar Kothari is having registration number IBBI/IPA-002/IPN00019/ 2016-17/10033, email: [email protected], phone: +91- 33-2281 7715 as Interim Resolution Professional to carry the functions as mentioned under IBC. 25. Accordingly, this Petition is admitted. 26. The Registry is at this moment directed to immediately communicate this orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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