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TMI Blog2019 (7) TMI 1588X X X X Extracts X X X X X X X X Extracts X X X X ..... that it has committed default for a total outstanding amount of Rs. 25,81,85,297/- (Rupees Twenty Five Crores Eighty One Lakhs Eighty Five Thousand Two Hundred Ninety Seven Only) while the total amount of debt granted was (Rupees Four Crores Only), which has been disbursed as under: i. Principal Amount of Rs. 1,50,00,000/-(Rupees One Crores Fifty Lakhs Only) disbursed on 24th March, 2008 ii. Principal Amount of Rs. One Crore Fifty Lakhs Only) disbursed on 31 th March, 2008. iii. Principal Amount of Rs. 50,00,000/-(Rupees Fifty Lakhs Only) disbursed on 16th June, 2008. iv. Principal Amount of Rs. 50,00,000/-(Rupees Fifty Lakhs Only) disbursed on 17th June, 2008. 2. Brief facts of this case, as mentioned in the Company Petition, are as follows: (1) M/S. Asia Pragati Capfin Private Limited, formerly known as M/S. Zwirn Pragati Capfin Private Limited is a company registered under the Companies Act, 1956, bearing CIN I.A. U67120MH1995PTC308202 and having its registered office at No.212/213, Nirman Kendra, Off Dr. E Moses Road, Mahalaxmi, Mumbai-400001. The Company is incorporated on 24.01.1995. It is registered as a non-banking financial company with the Reserve Bank of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22.05.2015 decreed the suit in favour of the Financial Creditor and accordingly, the Principal Debtor as well as Corporate Debtor shall jointly and severally be liable to pay a sum of Rs. 8,04,43,637/-(Rupees Eight Crores Four Lakhs Forty Three Thousand Six Hundred and Thirty Seven Only) along with interest at the rate of 21% p.a. from 23.03.2012 LA. along with costs of the suit. However, the Corporate Debtor failed to honour the directions of the Hon'ble High Court. Therefore, the Corporate Debtor is due and payable Rs. 25,81,85,297/-(Rupees Twenty Five Crores Eighty One Lakhs Eighty Five Thousand Two Hundred and Ninety Seven Only) as on the date of filing of this Petition. The Corporate Debtor has defaulted in making payments to the Financial Creditor and has breached the terms of the Guarantee Agreement. The Corporate Debtor is due and liable to pay the same to the Financial Creditor. And there is no dispute regarding the debt owed by the Corporate Debtor to the Financial Creditor since the said debt was acknowledged and accepted by the Corporate Debtor before the Hon'ble High Court of Delhi, New Delhi in CS (OS) No. 1030/2012 and admittedly, the Corporate Debtor has not filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na Theatre Limited, Rep. by Chairman, Udupi vs, General Investments and Commercial Corporation Limited, Rep. by its Director, Udupi reported in AIR 2003 Kar 502. Therefore, IA seeking to refer the matter to arbitration is not maintainable and deserves to be dismissed with exemplary costs. (9) It is further stated that as per Section 238 of the IBC, 2016, provisions of this Code shall override other law. Therefore, the Financial Creditor is entitled to initiate CIRP against the Corporate Debtor without taking recourse to any other remedy available to it. It is contended that the object of the Code will be defeated in case the present matter is referred to any Arbitrator, especially when the Corporate Debtor has no right under law to maintain an application U/ s 8 of Arbitration and Conciliation Act 1996. 3. The Corporate Debtor / Respondent has filed Statement of Objection dated 03.04.2019, by inter alia contending as follows: 1) The default on Term Loan Agreement dated 17th March, 2008 in question was allegedly made during the financial year 2009-10, and hence, the said debt cannot be given a fresh lease of life by filing the instant Application long after the prescribe Limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplementary Agreement. And in terms of the provisions of Section 133 of the Indian Contract Act, 1872, the Respondent No. 1 stood discharged from its alleged guarantee, if any, Section 133 of the India Contract Act, 1872, reads as follows: "133. Discharge of surety by variance in terms of contract - Any variance, made without the surety's consent, in the terms of the contract between the principal debtor and the creditor, discharges the surety as to transactions subsequent to the variance. - Any variance, made without the surety's consent, in the terms of the contract between the principal debtor and the creditor, discharges the surety as to transactions subsequent to the variance. " Therefore, the Respondent stood discharged from its alleged guarantee when the Supplementary Agreement, dated 11.07.2009, was executed without intimating the Respondent. Therefore, the liability of liability of Guarantor is required to be adjudicated. And thus it is contended that the Respondent is not liable to pay as it discharged. 4) It is also stated that the loan amount, on the basis of which the instant application has been filed was the subject matter of proceedings in the CS (OS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery Tribunal in the above case , it is ordered that, the Applicant/ Certificate Holder/ Bank is entitled to recover a sum of Rs. 2,50,14,350/- along with cost and expenses and current and future interest at 14.50% per annum compounded with monthly rests and penal interest at 1% from the date of filing of O.A. till date of realization in full, jointly, severally and personally from certificate debtors i.e. the Petitioner herein and others, In case of failure to pay the aforesaid adjudicated amount within 30 days same shall be recover from the sale of the schedule properties as per the recovery certificate issued by the Debt Recovery Tribunal vide dated 14.07.2015. (3) It is stated that the Bank has also initiated the proceedings under 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI), wherein it was made it clear that the bank shall hold by public auction on 18.09.2018 in respect of the immovable property situated at Sy. No. 15, I Phase, Peenya Village, Yeshwanthapura Hobli, Bangalore North Taluk, measuring 2 acres 36 guntas (1,26,324 Sq. Ft., along with factory building constructed thereon) Accordingly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and decree of the Hon'ble Delhi High Court at Delhi, passed in CS (OS) No. 1030/2012 dated 22.05.2015 became final as Defendants No. 1 and 2 of the suit (M/s.BT &FC Private Limited & Mr. M.V.Muralidhar, Managing Director and Guarantor) have filed a Review Petition on 13.12.2018 U/ S 114 R/ w Order XLVII Rule 1 of the Code of Civil Procedure, 1908, by seeking review of the Judgment and Order dated 22.05.2015 and 06.08.2015 passed in CS(OS) No. 1030/2012. And the same is still pending before the Hon'ble High Court of Delhi, wherein it is inter alia contended that there is an Arbitration Clause 14 contained in the Deed of Guarantee, the guarantors were neither personally present before the Hon'ble Court nor were they properly represented by their counsel on the date when the impugned order dated 22.05.2015 was passed by the Hon'ble High Court of Delhi. It is also contended that the dispute raised before the Hon'ble High Court of Delhi was a dispute that was in connection with the said Deed of Guarantee. The Review Petition is also maintainable as the Decree and order dated 22.05.2015, is in the form of a consent decree, from which no appeal is permitted by the Code of Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently, it is also stated that M/s.Radico Khaitan Ltd, Unsecured Creditor of M/ s.BT &FC Private Limited has filed OMP No.940 of 2011 against the BT & FC Private Limited before the Hon'ble High Court of Delhi for recovery of money and in the said petition, Radico Khaitan Limited prayed for deposit of the balance of the sale proceeds realized from the proposed auction of the Schedule Property by the State Bank of India. The Hon'ble High Court of Delhi vide order dated 20.12.2011, directed the Respondent to preserve the balance of auction proceeds, if any, after satisfying the dues of State Bank of India until further order. Subsequently, the Hon'ble High Court of Delhi has disposed of O.M.P.940/2011 is made absolute. It is also stated that the Plant and machineries are all hypothecated in favour of the other creditors. It is also to be noted here that the management of Principal borrower and the Corporate Debtor herein are substantially being managed by M.V.Muralidhar and his family members and they are personnel guarantors too to the loan given by the petitioners. 12. It is settled position of law that liability of Principal Borrower and surety/ guarantor is joint and several a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority cannot interfere with powers of the Hon'ble High Court Delhi and it is for the Hon'ble High Court of Delhi to take a decisions on review pending wherein among other grounds, the issue of referring the matter to the Arbitration is also raised. 13. As per Section 3 (12) "default" means non-payment of debt when whole or any pa.rt or instalment of the amount of debt has become due and payable and is not (paid) by the Debtor or the Corporate Debtor, as the case may be; and as per Section 3(11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt". In the instant case, where the debt in question has become due against principal borrower as well as Personal Guarantors and the Corporate together. Therefore, they have filed suit before the Hon'ble High court and with consent, of parties, the Hon'ble High court of Delhi passed order dated 22.05.2015 & 06.08.2015 in CS(OS)No. 1030 of 2012. Therefore, whether the Debt as payable as per the order of Hon'ble High court of Delhi is payable or not depends on decision of Hon'ble Court in pending Review. Admittedly, the petitioner has filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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