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TMI Blog2019 (6) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... .11.1987 in its letter dated 20.05.2017 addressed to the Petitioner. Thus, the fact of the execution of Corporate Guarantee is admitted by the Corporate Debtor. When the deed was signed at the time of taking a loan, the Guarantor now cannot contend that the deed is treated as revoked based on its notice to the Petitioner and Lenders as this can only be adjudicated by a Court of appropriate jurisdiction. The Petitioner has been assigned the loans by the Lenders of the Borrower Company. The Corporate Debtor is a Corporate Guarantor of the Borrower Company. The Petitioner is thus a Financial Creditor of the Corporate Debtor within the meaning of section 5(7) of the I B Code - The Corporate Debtor has not denied the sanction and disbursement of loan from the Lenders to the Borrower Company. The said loan is in default is also not disputed. The Application under sub-section (2) of Section 7 of I B Code, 2016 is complete - the application is admitted - moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor. A copy of said lease deed and deeds of Corporate, as well as Personal Guarantee, are annexed with the petition. 6. After that, due to default and non-fulfilment of the conditions of the Loan Agreements by the SHRL, the IFCI, vide, its Letter dated 13.03.1989, cancelled the undisbursed loan amount of Rs. Two hundred twenty-five lakhs and issued a recall notice dated 29.11.1989 on behalf of all the financial creditors claiming a cumulative amount of ₹ 5,43,94,687/-as follows on 31.10.1989: a. IDBI - ₹ 2,70,13,380/- b. IFCI - ₹ 1,38,13,463/- c. ICICI - ₹ 1,35,67,844/- 7. Subsequently, the lenders filed a civil suit before the Hon'ble High Court of Bombay bearing number Civil Suit No. 2654 of 1990 seeking recovery of a total amount of ₹ 6,04,77,858.50/-. In the meanwhile the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 was promulgated, and the Civil Suit No. 2654 of 1990 pending before the Hon'ble High Court of Bombay was transferred to the Debts Recovery Tribunal, Mumbai and was renumbered as O.A. No. 224 of 2002. 8. The DRT, Mumbai passed a final order in OA No. 224 of 2002 dated 06.05.2011 in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement dated 29.06.2017. Further, the Ld. Civil Judge vide judgement dated 03.08.2018 has held that "Since the Plaintiff, i.e. Sima Hotels failed to prove that the Lease Deed at Ext. C-30 is /was subsisting; in my view, the Plaintiff is not entitled to any relief in the present suit". This is to contend that the present matter does not have any security interest and this Tribunal has no jurisdiction to adjudicate on the validity of security interest /Leasehold rights. c. The Corporate Debtor has objected to the validity and enforceability of the Deed of Guarantee stating that the Petitioner has to prove whether the corporate guarantee of Corporate Debtor was sought for granting of the credit facilities; the Ld. DRT Mumbai framed issue regarding the guarantee deed dated 06.11.1987 but did not adjudicate upon the issue in its order dated 06.05.2011, the deed of guarantee signed by Corporate Debtor is hit by various sections of Indian Contract Act, 1872 as co-surety did not join in the agreement, the personal guarantee deeds are null and void and this by operation of law makes the guarantee deed of the Corporate Debtor also void-ab-initio. The guarantee deed was supported by coer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a forum of execution. The Corporate Debtor has placed reliance upon the order of the Hon'ble Principal Bench NCLT in Annapurna Infrastructure Pvt. Ltd and Ors vs Soril Infra Resources Ltd. and Deem Roll-Tech Limited vs R.L. Steel & Energy Limited to state that this tribunal cannot be converted into an executing court of the decrees obtained from the civil courts. h. The Petitioner has not furnished any record of the default recorded with the information utility and any other record or evidence of default and thus not complied with section 7(2) and 7(3)(a) of I&B Code. i. The Petitioner being a trustee is not a person in terms of section 5(7), 3(23) and 7 of the I&B Code, 2016 and thus it cannot be said to have a locus against the Corporate Debtor under section 7 I&B Code. j. That the Petitioner has falsely and baselessly claimed to be a Financial Creditor and shall prove that Assignment was done legally. The Petitioner has forged and fabricated records of CERSAI search reports and manipulated MCA records. The Corporate Debtor has also raised allegations of fabricated outstanding accounts annexed with the petition . 12. The Petitioner has relied upon point 7(c) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced to judgment. Further, it has stated that the said judgments on which the Corporate Debtor has sought reliance have been overturned by the Hon'ble NCLAT. 16. We have heard arguments and perused the records. 17. The Petition is filed by Mr Mahesh Kumar Trivedi who is authorised to file the present petition vide board resolution dated 15.12.2017. 18. The credit facility sanctioned to the Borrower was secured by hypothecation and mortgage. The Petitioner has filed Form 8 dated 13.11.1987 and 11.07.1988detailing the particulars of charge created/modified by the borrower under section 125/127/135 of the Companies Act, 1956 in favour of the IDBI. Similar Form 8 evidencing creation and modification of charge in favour of IFCI and ICICI Bank are also annexed with the petition. The Deed of Hypothecation dated 04.11.1987executed by Borrower in favour of the Lenders is also annexed with the Petition. 19. The Petitioner was assigned the debts by the Lenders vide various assignment agreements dated 13.10.2014, 26.02.2016 and 24.03.2017. The said agreements are annexed to the Petition. 20. The Lead Financial Institution among the Lenders sent notice recalling the entire outstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing - i.e. before such notice or invoice was received by the corporate debtor. The moment there is the existence of such a dispute, the operational creditor gets out of the clutches of the Code. 30. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of 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." 24. The Corporate Debtor has admitted that it has executed the Corporate Guarantee dated 06.11.1987 in its letter dated 20.05.2017 addressed to the Petitioner. Thus, the fact of the executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted (AARC), Financial Creditor / Petitioner, under Section 7 of I&B Code, 2016, against the Corporate Debtor Dugal Projects Development Company Private Limited for initiating corporate insolvency resolution process is at this moment admitted. We further declare moratorium u/s 14 of I&B Code with consequential directions as mentioned below: I. That this Bench as a result of this prohibits: a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d) the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. II. That the supply o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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