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TMI Blog2021 (5) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... y 2019 and in spite of lapse of more than one and half years the Respondent did not pay even a single rupee to the Petitioner despite various assurances/submissions made during the course of the submissions. Finally, during the hearing held on 14.12.2020, Ld. Counsel for the Respondent submitted that settlement had failed. In view of the same, the debt and default under Section 7 of the IBC, 2016 is established. The Petition is complete in all respect and there is no reason to deny admission of this Petition held under Section 7 of IBC and to initiate CIRP proceedings against the Respondent. Under section 7(5) of IBC where the Adjudicating Authority is satisfied that a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed RP, it may, by order, admit such application; It clearly shows that the Respondent is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. In the facts and material made available on record, it is satisfying that debt and the default stands established and no disciplinary proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secure the said loan. (e) A Security Trustee Agreement dated 21.08.2017 was executed between the Respondent, SK Wheels Private Limited and the Petitioner Piramal Trusteeship Services Private Limited. (f) The loan was further secured by Personal Guarantee dated 21.08.2017 executed by Mr. Anil Kumar, Mr. Akshit Kumar and Mrs. Manjusha Kumar, the promoters of the Respondent in favour of the Petitioner. (g) A Demand Promissory Note dated 22.08.2017 was issued by the Respondent in favour of the Petitioner. (h) A Share Pledge Agreement dated 21.08.2017 was executed by the above three promoters of the Respondent in favour of the Petitioner. Pursuant to the Share Pledge Agreement, a Power of Attorney dated 21.08.2017 was also executed. (i) Deed of Hypothecation dated 21.08.2017 was executed between the Respondent and the Petitioner. (j) A copy of amended and restated Escrow Agreement dated 22.08.2017 was executed by the Respondent and HDFC Bank Limited and Piramal Trusteeship Services Private Limited. (k) The said loan was repayable in 180 instalments commencing from the date of disbursement of the said loan with interest @ 12.5% p.a. and on default of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t up the following defence:- (a) The Petition is not maintainable and bad in law. The Petitioner has come with unclean hands and has suppressed and concealed material facts from the Tribunal. (b) The assets mortgaged and hypothecated to the Petitioner are in a very high value and hence, the dues are secured by the said assets. In light of the same, there arises no need to initiate the CIRP against the Respondent. (c) The Petitioner has placed Facility Agreement dated 12.07.2017 read with Sanction Letter dated 23.08.2017 calling upon the Respondent to repay the loan. The said Facility Agreement along with other ancillary documents have been executed in Delhi i.e. outside the State of Maharashtra. (d) The Respondent submits that the Facility loan Agreement has not been duly stamped as per the provisions of Section 18 of the Maharashtra Stamps Act, 1958 and hence cannot be considered or acted upon. The claim of the Petitioner is entirely based on the Facility Loan Agreement and it is not a valid document and not tenable in law. The said Facility Loan Agreement is executed in the State of New Delhi. The Petitioner has not paid the requisite Stamp Duty nor has any pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availing the finance. 5. The Petitioner has proposed the name of Mr.Arun Kapoor, Registration No. IBBI/IPA-003/IP/N00030/2017-2018/10230, as the Interim Resolution Professional of the Respondent. He has filed his written communication in Form 2 as required under rule 9(1) of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 6. We have heard the arguments of both sides and perused the records. 7. With respect to the objection of the Respondent that Facility loan Agreement not been duly stamped as per the provisions of Section 18 of the Maharashtra Stamps Act, 1958 and the Facility Agreement along with other ancillary documents have been executed in Delhi i.e., outside the State of Maharashtra may not be a concern under IBC. Besides the Facility loan Agreement is not the only document to prove the debt. There is surplus material to prove that debt and default are in existence whereby this argument is not sufficient enough to deny the claim of the Petitioner herein. Therefore, the same may not be a valid ground to reject this Petition. 8. The submissions of the Respondent that assets mortgaged and or hypothecated to the Petitioner are in a v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner and without their consent/permission in writing, the Respondent cannot sell the assets to the third-party. Ld. Senior Counsel also submitted that the negotiations with the prospective buyers are not up to the market value as per the estimated or the calculation of the Petitioner. Therefore, he submitted that even though the deal with the prospective buyers would go through, the Petitioner would not give permission to sell the assets and they will not release the mortgage created in the assets to sell to the prospective buyers. 13. From the Application it is also noted that the outstanding debt amount is approximately ₹ 84.87 Crores and the account was classified as NPA/default on 10.04.2019. The Application was filed in the month of January 2019 and in spite of lapse of more than one and half years the Respondent did not pay even a single rupee to the Petitioner despite various assurances/submissions made during the course of the submissions. Finally, during the hearing held on 14.12.2020, Ld. Counsel for the Respondent submitted that settlement had failed. In view of the same we are of the considered view that debt and default under Section 7 of the IBC, 2016 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent any of its assets or any legal right or beneficial interest therein; (iii) Any action to foreclose, recover or enforce any security interest created by the Respondent in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Sarfaesi) Act, 2002; (iv) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Respondent. (c) Notwithstanding the above, during the period of moratorium:- (i) The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period; (ii) That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any sectoral regulator; (d) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the Resolution Plan under sub-section (1) of section 31 of the IBC or passes an order for Liquidation of Respondent under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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