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TMI Blog2020 (10) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 5(8) of the IBC, 2016 - there are no force in the contention raised on behalf of the Learned Counsel appearing for the Corporate Debtor that the applicant is not a Financial Creditor and the amount which the applicant claimed is not a financial debt, rather, we are of the considered view that applicant is Financial Creditor and the outstanding due which the applicant claimed comes under the definition of financial debt . The Corporate Debtor has taken the loan from the Kotak Mahindra Bank Ltd. which was subsequently assigned by assignment letter dated 29.09.2017 to the applicant and that has not been paid and the documents enclosed with the application as well as the rejoinder shows that there is a default in payment of the said debt - the application is complete - application admitted - moratorium declared. - (IB) 2039 (ND)/2019 - - - Dated:- 27-5-2020 - Abni Ranjan Kumar Sinha, Member (J) And Kapal Kumar Vohra, Member (T) For the Appellant : Abhinav, Sonali Khanna, Anshuman, Chitranshul A. Sinha For the Respondent : Prashant Kataria, Rohit Mehra Advocates ORDER Abni Ranjan Kumar Sinha, Member (J) 1. The present application is filed on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.10.2017 which was executed by the Financial Creditor in favour of the Corporate Debtor. It is most pertinent to bring to light that since the transaction between the parties herein was in the form of Restructuring and sanctioning of a fresh loan facility, the Corporate Debtor also charged a sum of ₹ 33,50,000 as processing fee at 2 % of ₹ 13,50,00,000/- (the amount restructured) and 2% of ₹ 3,25,00,000/- (only being the top up loan). The quantification of the amount as charged being ₹ 33,50,000/- stands described below: - Loan Amount (in Rs. ) Processing fees at 2% 13.5 Crores 27 Lakhs 3.25 Crores 6.50 Lakhs Total 33.50 Lakhs 6. The aforesaid processing fee stood duly paid by the Corporate Debtor to the Financial Creditor, hence, all terms and conditions for the restructuring loan were complied with by the Corporate Debtor. A copy of the letter dated 03.10.2017 and a copy of the Loan Agreement dated 29.09.2017 are annexed as Annexure R-2 (Colly.) and copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary as the same were based on the terms of the erstwhile loan agreement prior to the restructuring. A Copy of the email dated 16.08.2019 sent by the Corporate Debtor to the Financial Creditor is annexed as Annexure R-7. 10. Further, the Corporate Debtor has not come with clean hands, therefore, the present application is not liable to be dismissed rather, the cost may also be imposed under Section 60(5) of the IBC, 2016. 11. The facts mentioned in the rejoinder, in short, is that annexure 6, at page 67 volume-I of the Company Petition comprises of Statement of accounts of the Corporate Debtor in the books of the Financial Creditor and also in the book of Kotak Mahindra Bank Limited (Original lender or assignor) which demonstrate that outstanding as on 23rd April, 2019. 12. Further, in the entire reply, the Corporate Debtor has raised the disputes over the amount of default which cannot be a ground for rejection of an application because if the default is more than of ₹ 1,00,000/- (one lakh) then it is sufficient to trigger Section 7 of the IBC, 2016. 13. Further, the Original Lender has disbursed the loan of ₹ 4,50,00,000/-on 31st January, 2015 and subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further submitted that on the request of the Corporate Debtor vide its letter dated 24.09.2017, the loan facility so availed was restructured by the Financial Creditor/Applicant vide restructuring letter dated 29.09.2017 but due to continued default on the part of the Corporate Debtor on 12th February, 2019, the restructuring letter dated 29.09.2017 stood revoked by revocation letter dated 12th February, 2019 and thereby terminating all the relief and concession granted to the lender by way of restructuring letter dated 29.09.2017. 21. He further submitted that the grounds taken by the Corporate Debtor, in its reply, are erroneous an intangible because ₹ 3,25,00,000/- was granted to the Corporate Debtor in terms of request letter dated 24.09.2017 by the Financial Creditor in its own capacity and not as a trustee of Suraksha - 012 and as such the two facilities are by separate individual entities, which cannot be combined into a consolidated facility. 22. He further submitted that the Corporate Debtor had never denied this fact that he has received the loan and there is no default in payment of the loan, rather, in reply in para (8) admits that he had paid a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under subsection (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be. 29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in subsection (1), bring 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 existence of such a dispute, the operational creditor gets out of the clutches of the Code. 30. On the other h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the averments made in the application, rejoinder and the reply as well as the application filed under Section 60(5) of the IBC, 2016, after the closer of the argument by the Corporate Debtor then we find that by filing the reply, the Corporate Debtor admits this fact that originally the loan was sanctioned by Kotak Mahindra Bank Limited but subsequently, the loan was restructured as per the SARFAESI and same was done on the request of the Corporate Debtor, which would be evident from Annexure R-3 enclosed with the Rejoinder at page 16 filed by the Financial Creditor. 30. At this juncture, we have gone through the letter written by the Corporate Debtor on 2409.2017, which is available at page 16 of the Rejoinder filed by the Financial Creditor and we find that a proposal for acquisition, restructuring of existing facilities of the borrowers and additional funding and on the request of the Corporate Debtor, the Financial Creditor vide assessment agreement dated 29.09.2017, restructuring the loan, which would be evident from the assignment agreement available at page 28 to 46 of the paper book of the main petition filed on behalf of the Financial Creditor. 31. We further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed that the present application is not maintainable. 36. When we shall consider this application of the corporate debtor, in the light of the decision, which we have referred in the aforementioned para then we are of the view that in order to trigger Section 7, the Adjudicating Authority is required to consider whether there is a financial debt and there is a default in payment of that debt or not. 37. Now, in the light of the aforesaid facts, when we shall consider the case in hand, then we find that the Corporate Debtor has taken the loan from the Kotak Mahindra Bank Ltd. which was subsequently assigned by assignment letter dated 29.09.2017 to the applicant and that has not been paid and the documents enclosed with the application as well as the rejoinder shows that there is a default in payment of the said debt. 38. We further find that the application is complete, the name of IRP is proposed and the IRP has also accepted the proposal which is at page 25 of the application and there is no disciplinary proceedings pending against the proposed IRP and amount is more than Rs. One Lakh is being the minimum threshold limit fixed under IBC, 2016, hence under such circums ..... X X X X Extracts X X X X X X X X Extracts X X X X
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