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TMI Blog2021 (5) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... shing financial contract, disbursal of the amount, thereafter signing memo of deposit of title deeds for creation of equitable mortgage. With regard to obligation of guarantee, there is a separate guarantee deed the corporate debtor taking obligation upon itself to pay the loan amount of ₹ 85 Crores along with the interest in the event Vinay Jain defaulted in repaying the loan amount. In addition to it, the corporate debtor has also given its property as security by deposit of title deeds. These are two separate agreements binding the corporate debtor. To proceed against the corporate debtor to place claim upon it as financial debt, IIFL need not rely upon the mortgage charge because section 5 (8)(i) of the Code says that when any guarantee is given over the money borrowed by the borrower with a promise that he would repay the money borrowed along with interest, such obligation of guarantee will fall within the ambit of the clause (i) of section 5 (8) of the Code. For the present claim will fit into clause (i) of definition of financial debt, to admit the claim, the RP need not look into as to whether any charge created and whether such charge has been properly recorded. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the claim of the IIFL though IIFL alone has largest substantial claim of 34.3% of voting right in the CoC and continued holding CoC meetings. 4. Aggrieved by non-collating the claim of IIFL, it has filed CA2608/2019 before this Bench seeking directions against the RP to consider its claim, upon which this Bench on 14.01.2020 directed the RP to consider the claim of IIFL within ten days, accordingly CA 2608/2019 was disposed of. 5. While the litigation about the claim of IIFL was in progress, the RP in the second CoC meeting informed all the Members of the CoC that Tower-B is in possession of IIFL under SARFAESI Act, 2002, therefore initiated proceedings to take back the possession from IIFL. Soon after this was informed to the CoC, the RP sent an email dated 30.10.2019 to IIFL to handover possession of Tower-B belonging to the Corporate Debtor as per the provisions of IBC, when IIFL did not respond to the same, IRP again mailed on 09.11.2019 requesting IIFL to handover possession of the property aforesaid. 6. As against the claim of IIFL, the RP informed IIFL on 24.01.2020 that he is unable to verify IIFL claim against the Corporate Debtor from the records of the CD, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertinent to note the background facts of the transactions between the CD and IIFL. It is an admitted fact that the CD availed three term loans, ₹ 25 crores on 09.01.2015, ₹ 75 crores on 13.01.2015 and ₹ 35 crores (amount disbursed is ₹ 23 crores) on 29.04.2016. The total amount disbursed to the CD by way of above those three loans was ₹ 123 crores. As these three loan accounts had become irregular in August 2017, the management of the CD being interested to regularize all the three accounts, the Directors of the CD, Smt. Asha Jain and Smt. Sakhshi Agarwal approached IIFL for sanction of new credit facility in favor of Mr. Vinay Jain so that adjustment could be made to avoid the accounts remaining irregular. To get over this problem, IIFL vide sanction letter dated 28.09.2017 agreed to extend a loan of ₹ 85 crores to the CD director Mr. Vinay Jain backed by the guarantee of the CD for repayment of outstanding dues of existing three loan accounts of the CD. The loan was granted on the guarantee and security by way of mortgage of property of the CD and M/s. West View Properties Ltd. The loan amount of ₹ 85 crores was disbursed to the escrow ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as become ₹ 134,15,62,129. 16. It is also pertinent to mention here though Tower-B of AVJ Heights was initially mortgaged towards those three term loan, for the CD again executed a guarantee deed along with mortgage of AVJ Tower property, the title deeds deposited by way of equitable mortgage to IIFL remained in the custody of IIFL because CD has again mortgaged this CD towards ₹ 85 crores loan subsequently taken so as to pay part of the loan amount of those three term loans. In the meanwhile, CIRP being initiated against the CD, the applicant has filed its claim against the CD based on the guarantee given by the CD. 17. Against which, the RP counsel submits that on verification of the books of the CD and the documents submitted by IIFL, the amount claimed is neither reflected in the financial statement of the CD nor is the applicant able to verify the same from the records of the CD. He has further submitted that Vinay Jain, Director of the CD who alleged to have executed loan documents for the amount of ₹ 85 crores and alleged to have signed guarantee deed on behalf of the guarantor, has filed FIR 0143 dated 02.08.2019 against the Directors' of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have explained away this issue simply by saying that he cannot adjudicate the claim because the claim is contentious. But what the RP did is, he indeed adjudicated the claim application looking at the FIR copy given by Mr. Vinay Jain. 20. IIFL has filed loan agreement with regard to ₹ 85 Crore loan and guarantee deed explicitly mentioning that this loan beneficiary is the Corporate Debtor, and the applicant has filed record of transfer of the loan fund to the escrow account of the corporate debtor and then transferred it to the three loan accounts of the corporate debtor. For evidencing it, the applicant has filed transaction details. Moreover it is the case of Mr. Vinay Jain that this ₹ 85 Crore was unilaterally and forcefully transferred to the three loan accounts, if that is so, why Mr. Vinay Jain has not returned this money of ₹ 85 Crore to IIFL before initiation of this CP. It is indeed at the request of the Debtor and its directors, this arrangement was made so as to avoid consequences following with respect to irregular loan accounts. By seeing this statement of Vinay Jain, it is evident he is admitting ₹ 85 Crore coming into escrow account for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords discloses recording of charge in relation to three loans availed by the CD, but not in relation to ₹ 85 Crore of loan upon which this claim has been filed by the Applicant. In view thereof he says that he cannot determine the existence of claim against the corporate debtor unless it is verified from the records of the corporate debtor. The RP Counsel has relied upon Swiss Ribbons Private Limited and another Vs. Union of India and Others AIR 2019 SC 739 to say that the RP has jurisdiction only to verify the claim from the record filed but not to adjudicate the claim. 23. As against this contention, the Applicant Counsel says that Mr. Vinay Jain, Suspended Director of the Company executed Credit Facility Agreement and Guarantee Deed on 01.11.2017 along with the Board Resolution and Memorandum of deposit of title deeds. The applicant has, apart from the documents relied above, filed an order dated 09.01.2020 passed in SA. No. 175 of 2018 by the Learned DRT-II, Delhi already rejecting what all the contentions raised by Mr. Vinay Jain in the FIR filed by him. The applicant has also stated that no action has been taken against the FIR filed by the suspended director. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of equitable mortgage. 28. With regard to obligation of guarantee, there is a separate guarantee deed the corporate debtor taking obligation upon itself to pay the loan amount of ₹ 85 Crores along with the interest in the event Vinay Jain defaulted in repaying the loan amount. In addition to it, the corporate debtor has also given its property as security by deposit of title deeds. These are two separate agreements binding the corporate debtor. To proceed against the corporate debtor to place claim upon it as financial debt, IIFL need not rely upon the mortgage charge because section 5 (8)(i) of the Code says that when any guarantee is given over the money borrowed by the borrower with a promise that he would repay the money borrowed along with interest, such obligation of guarantee will fall within the ambit of the clause (i) of section 5 (8) of the Code. For the present claim will fit into clause (i) of definition of financial debt, to admit the claim, the RP need not look into as to whether any charge created and whether such charge has been properly recorded. Of course, all documentary proof is evident on record to prove that money is availed, security is given towar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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