9911796707
TMI Blog2020 (1) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Loan Agreement and hence in the present matter, the Corporate Debtor is bound to pay the dues to the petitioner and cannot run away from his liability. Secondly, the documents submitted by the petitioner are enough to establish the debt as well as the default on the part of the Corporate Debtor. Computation of the amount, correct or not - HELD THAT:- The amount due under the agreement were secured by the Corporate Debtor by way of Deed of Guarantee which is also admitted by them. The amount of 41,25,10,306/- which is claimed to be in default by the petitioner includes the outstanding principle amount, interest as per IRR and penal interest as per the particulars of claim which is annexed as Annexure K of the copy of petition. Absence of privity of contract - HELD THAT:- This contention does not stand because clause 18.2.1 of the Debenture Subscription Agreement clearly entitles the petitioner to exercise rights upon the occurrence of an event of default, being, inter alia, accelerating the redemption of the debentures, enforcing the security documents. Consent from such debenture holders not taken - HELD THAT:- After reading the Board Resolution annexed by the petitioner at Ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared. X X X X Extracts X X X X X X X X Extracts X X X X ..... 06/- as on 25/03/2019 along with further interest, redemption premium and penal interest payable until payment and/or realization thereof. The date of default as mentioned by the petitioner is 31/03/2018. 9. The counsel for the petitioner also submitted that by and under a Debenture Trust Deed dated 21/03/2015 IL&FS Trust Company Limited was appointed as the Debenture Trust of the debentures subscribed to by the petitioner. 10. The petitioner has annexed the following documents in support of the contentions made: i. Copy of Board Resolution ii. Copy of the Account Statement of the Financial Creditor held with HDFC Bank iii. Copy of the Debenture Subscription Agreement iv. Copy of Debenture Trust Deed v. Copy of Corporate Guarantee vi. Copy of notice issued to Playtor Lifespaces Private Limited and the Corporate Debtor vii. Copy of the Notice issued to the Corporate Debtor viii. Copy of the RPAD acknowledgment receipts ix. Copy of the e-mail correspondence x. Copies of the account statement of the Financial Creditor held with its Bank xi. Copy of the Particulars of Claim xii. Copy of the Master data of the Financial Creditor and Corporate Debtor 11. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same cannot be relied upon. Also, the Corporate Debtor mentioned that the Deed of Guarantee was not executed in Maharashtra and should have been stamped within three months after it has been first received in this State. In support of this contention, the Corporate Debtor has relied on the recent judgment of the Hon'ble Supreme Court of India in the matter of Garware Walls Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd. wherein the Court reversed the judgment of the Bombay High Court and reiterated the principles laid down by it in the matter of SMS Tea v. Chandmari Tea Estate and held that an arbitration clause as an instrument, which is not stamped as per law, cannot be given effect if and until the instrument is duly stamped i.e. full stamp duty in respect of such instrument as provided by law has been paid. If an unstamped instrument is brought before a person authorised to receive evidence or holding a public office, such person is required to impound the instrument. The Corporate Debtor contended that the said instrument referred to in this petition are to be impounded under the Maharashtra Stamp Act, 1958. 17. The Corporate Debtor further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reminders in the form of notices, the Corporate Debtor failed to repay the dues. 22. The main contention raised by the Corporate Debtor is that the said Debenture Agreement is merely an investment and does not amount to Loan. But here on this aspect, we would like to rely on the order of the Hon'ble National Company Law Appellate Tribunal in the matter of Neelkanth Township and Construction Pvt. Ltd. v. Urban Infrastructure Trustees Ltd.(Company Appeal (AT)(Insolvency) No. 44 of 2017) decided on 11.08.2017 wherein it was held that in view of Section 5(8)(c) of the Code, a 'debenture' comes within the meaning of 'financial debt'. Thus, is expressly covered under Section 5(8) of the IBC, 2016 as well as Section 2(30) of the Companies Act, 2013. 23. Therefore, the contention made by the Corporate Debtor that they are not bound to repay the amount because it was the Debenture Subscription Agreement that was entered into both the parties which cannot be called to be a loan but is merely an investment, does not stand. Also, reliance can to be placed on the judgment of the Hon'ble Supreme Court of India in M/s. Innovative Industries Limited vs. ICICI Bank and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitles the petitioner to exercise rights upon the occurrence of an event of default, being, inter alia, accelerating the redemption of the debentures, enforcing the security documents. 27. Further to the contention of the Corporate Debtor that this petition has been preferred by the Subscriber without taking consent from such debenture holders and that the Board Resolution passed by the petitioner does not in any manner mention that the Corporate Insolvency Resolution Process can be initiated against the Corporate Debtor which is a mandatory condition. But after reading the Board Resolution annexed by the petitioner at Annexure A of the copy of petition, it is observed that it does contain and clearly mentions to institute an insolvency petition and therefore, there is no scope for any ambiguity in relation thereto. 28. The next contention raised by the counsel appearing on behalf of the Corporate Debtor that the Stamp Duty is not duly paid on the Deed of Guarantee and hence, the same cannot be relied upon and also that the Deed of Guarantee was not executed in Maharashtra and should have been stamped within three months after it has been first received in this State for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he repayment of the last 20% of the principle amount and not the date of which the Corporate Debtor could repay the entire amounts due under the Debenture Subscription Agreement and therefore, there was no moratorium time available to repay the debt as the entire moratorium period got expired on 31/03/2017. 30. Therefore, all the contentions of the Corporate Debtor do not stand because of the abovementioned reasons and due to the existence of debt and default being made on the part of the Corporate Debtor in making the payment to the petitioner. The amount in default is well above the minimum required amount of ₹ 1 Lakh. Thus, it is to be noted that this petition fulfils all the requisite conditions to admit a petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 and therefore, the petition deserves to be admitted. 31. 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. In the light of above facts and circumstances, the existence of debt and default is reasonably established by the Financial Creditor as a major constituent for admission of a petition u ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
