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TMI Blog2019 (9) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... nk India and ICICI Bank UK PLC by Corporate Debtor re-asserting the rights in favour of ICICI Bank UK PLC to claim its outstanding dues qua M/s Assam Oil Company Ltd from the proceed of the sale of the property owned by the Corporate Debtor . Clause 5.1 of the said Agreement, created right in favour of ICICI Bank UK by the Corporate Debtor . Therefore, it is clear that an unequivocal obligation has been undertaken by the Corporate Debtor under the Agreement to repay the loans availed by M/s Assam Oil Company Ltd from ICICI Bank UK PLC. The acknowledgement liability of financial debt by Corporate Debtor towards ICICI Bank UK PLC for M/s Assam Oil Company Ltd is further fortified by the amendments made to its Articles of Association by inserting Article 34(c) whereby it lists of Creditors ICICI Bank UK has been shown as lender, in relation to the debts owned by ICICI Bank UK from M/s Assam Oil Company Ltd . ICICI Bank U.K. PLC has successfully made out a case that it is the Financial Creditor of the Corporate Debtor and the Adjudicating Authority has rightly admitted the application under Section 7 of I B Code - Appeal dismissed. - Company Appeal (AT) (Inso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid issue is not the subject matter of the application under Section 7 of the I B Code filed by 1st respondent. 5. Learned counsel for the appellant submitted that the Adjudicating Authority failed to notice that Section 7 application can be filed by Financial Creditor either by itself or jointly with other financial creditors. The default must be in respect of a financial debt owed by the Financial Creditor and not any financial creditor. According to the counsel for appellant, in the present case, the application under Section 7 was filed by ICICI Bank UK PLC for the alleged loan granted to M/s Assam Oil Company Limited in which the Corporate Debtor is not the guarantor nor mortgaged any of its asset. Therefore, according to the learned counsel for appellant, ICICI Bank UK PLC is not Financial Creditor qua M/s Aditya Estates Pvt Ltd ( Corporate Debtor ) within the meaning of Section 5(7) r/w Section 5(8) of the I B Code. Reliance has been placed on decision of this Appellate Tribunal in Nikhil Mehta Sons Vs AMR Infrastructure Ltd. 6. Learned counsel for the appellant submitted that there is no debt payable to ICICI Bank UK PLC from Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 26th March, 2019 has stayed the proceedings before the Debt Recovery Tribunal. The aforesaid issue has attained finality. 9. Learned counsel for the appellant placed reliance on Clause 5(2) of Debt Asset Swap Agreement dated 20th December, 2014 which stipulates sale of the property can be made only for a price above the Reserve Price . If the sale price of the Property is less than the Reserve Price . then ICICI Bank UK Facility cannot be repaid and, therefore, according to appellant the Debt Asset Swap Agreement is not and cannot be construed as a guarantee by the Corporate Debtor . 10. Reliance was also placed Clause 2.1(g) of Debt Asset Swap Agreement which provides for the proceeds of any sale, which is to be used for repaying or discharging the obligations of M/s Assam Oil Company Ltd towards ICICI Bank UK PLC, only after settling all statutory dues, repayment of the dues of others can be made. According to the counsel of the appellant if nothing is left after the payment of statutory dues and the outstanding under the ICICI Bank Indian Facility, ICICI Bank UK Facility will not be paid. 11. Though the aforesaid submission has been made, but from the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Facility Agreement dated 15th April, 2011. The relevant portion of the Facility Agreement dated 21st December, 2007, as amended from time to time, and the Clause 25.1 of the said Agreement shows that M/s Aditya Estates Pvt Ltd has been defined as Relevant Person . As per said agreement Relevant Person includes an obligor, Quicknet, the issuer and M/s Aditya Estate Pvt Ltd ( Corporate Person) . The Clause 25 deals with Events of Default whereas Clause 25.1 relates to non-payment as quoted below: 25. EVENTS OF DEFAULT Each of the events or circumstances set out in this Clause 25 is an Event of Default (save for Clause 25.25 (Acceleration)). 25.1 Non-Payment A Relevant Person does not pay on the due date any amount payable pursuant to a Transaction Document at the place at an in the currency in which it is expressed to be payable. Failure by the Relevant Person which includes Corporate Debtor , to pay on the due date any amount payable by it in terms of the said agreement, is defined as a Event of Default . The aforesaid agreement was reached between M/s Assam Oil Company Ltd and ICICI Bank UK PLC and in it the Corporate Debtor has been shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Reserve Price. Xxx 5.4 In case the Owner and/or the Attorney fail(s) to sell/auction the Immovable Property and/or deposit the sale proceeds of the Immovable Property for any reason whatsoever or repay the Total Dues within the timelines stipulated hereinabove, the Attorney shall provide a final notice of 7 days to the Owner to pay the Total Dues, failing which the Lender shall proceed to purchase the Immovable Property in accordance with Clause 5.6 herein. 20. In addition to ICICI Bank India and Corporate Debtor, ICICI Bank UK PLC has been separately included in the Debt Asset Swap Agreement as a confirming party. Though ICICI Bank UK PLC has not separately signed the Debt Asset Swap Agreement inspite of that it is stated therein as a party, however, the same is immaterial as the Corporate Debtor has undertaken obligation under the Debt Asset Swap Agreement and ICICI Bank UK PLC being a beneficiary of the obligation undertaken by the Corporate Debtor and other parties under the said Agreement. 21. The subsequent Multi-Party Undertaking dated 14th April, 2015 placed on record shows that it was executed in favour of both ICICI Bank India and ICICI Bank U ..... X X X X Extracts X X X X X X X X Extracts X X X X
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