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TMI Blog2021 (6) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of Rs. 15 crores on 16.04.2019 wherein it was held that facility of short-term loan for general corporate purposes and real estate projects would be granted to the Corporate Debtor. 3. As per the facility agreement various securities were provided to the Corporate Debtor which includes- i. Personal guarantees of two of the promoters of Corporate Debtor. ii. A pledge on shares held by 5 promoters of Corporate Debtor aggregating to 76% of paid-up equity share capital of the Corporate Debtor free from all encumbrances. iii. A Demand Promissory Note in respect of the entire principal amount of Rs. 15 crores issued by the Corporate Debtor in favour of Petitioner. iv. An undertaking executed by the Corporate Debtor and its promoters for creation of a negative lien. v. Post-dated Cheques from the Guarantors as well as from the Corporate Debtor. 4. The Corporate Debtor was also supposed to execute a mortgage in favour of the Petitioner in respect of all the rights, title and interest (including TDR rights), both present and future over the Corporate Debtor's properties in Dahisar, Mumbai, however, the same was not provided. 5. The Corporate Debtor requested a drawdo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner, however, there was no denial of financial debt which is due and payable. 12. The Petitioner was thus constrained to issue notice dated 22.01.2020 under the Facility Agreement to the Corporate Debtor, Guarantors and Pledgors in view of the event of default which has occurred due to nonpayment of money and interest by the Corporate Debtor. 13. It is pertinent to note that all the cheques issued by the Corporate Debtor and Guarantors were returned by the banks for insufficient funds. 14. The Petitioner further issued notices dated 18.03.2020 to the Corporate Debtor, Guarantors and Pledgors/Promoters to pay the amount of Rs. 18,35,45,616/-. The Corporate Debtor addressed an Email on 31.03.2020 and stated that they are unable to meet the obligations with respect to the facility on account of post majeure event (COVID-19) and proposed a one-time restructuring of obligation. The Petitioner vide email on 03.04.2020 replied to the Corporate Debtor stating inter alia that the principal amount of the facility was to be repaid on 18.10.2019, and therefore, there was a default of 5 and half months which could not be said as a result of economic fallout of COVID-19. 15. On 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property at Dahisar viz. Rehab Building No. R-1 on Slum Rehabilitation Scheme under Clause 3.11 read with Clause 3.5 and 3.19(ii) of Appendix IV of the DCR, 33(10) on land bearing CTS No. 358 corresponding Survey No. 4 and CTS No. 359 corresponding Survey No. 3, Hissa No. 1 of village Dahisar at Dahisar (West), Mumbai ("Dahisar Property"). 4) Two individual Deeds of Guarantee dated 16th April 2019, being personal guarantees extended by Haresh Raghavji Patel and Rajesh Raghavji Patel, i.e., Guarantors to the Applicant where under all the obligations of the Corporate Debtor were secured. 5) A copy of the Certificate of Registration of Charge by the Registrar of Companies in Form No. CHG-1 recording that there is first and exclusive ranking pledge of the pledged shares under the Deed of Pledge dated 16th April 2019, and a Negative Lien over the properties and shares (being the Dahisar Property and the pledged shares) under the Undertaking for creating negative lien dated 16th April 2019. The certificate also records that Haresh Patel and Rajesh Patel, the Guarantors and promoters of the Corporate Debtor, had executed personal guarantees. A copy of the Certificate of Registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt along with its covering email dated 22nd January 2020. 16) Cheque Return Memos in respect of the cheques issued by the Corporate Debtor and its Guarantors. 17) Two notices addressed by the applicant to the Corporate Debtor on 18th March 2020 along with their covering emails. 18) Certificate of Registration of Charge by registrar of Companies in Form No. CHG-1. 19) A detailed tabular computation showing the calculations for the financial debt, the payments thereunder, the defaults thereunder, interest calculations thereon, along with the days of default. 20) Information Utility Report. Written submissions of Petitioner: 19. The Petitioner had sanctioned a financial debt of a short-term loan to the Corporate Debtor for general corporate purposes and for real estate project by way of Sanction Letter dated 15.04.2019 and thereafter executed a Facility Agreement dated 16.04.2019 wherein the total amount of debt granted is total amount of Rs. 15 crores was lent to the Corporate Debtor. The agreement specifically contained the maturity as six months from the broad on date and the agreement also entailed that monthly interest payments (on every 30 days) from the date of draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid proposal, Corporate Debtor submitted that they are willing and ready to offer security to tune of Rs. 90 crores, whereas the purported debt claimed by the Petitioner is a meagre sum of Rs. 26,30,11,646/-. Evidently therefore, the security being offered by the Corporate Debtor is far in excess of the Petitioner's alleged claim and hence, claimed that it is wholly inequitable for the Petitioner for not accepting the proposal and insisting for CIRP proceedings. The other grounds as set out in the written submissions are as follows: (a) The Corporate Debtor is a going concern with assets in excess of Rs. 280 Cr.; (b) The Corporate Debtor is the Parent Company of Rajesh Estates and Nirman Private Limited, Kothari Auto parts Manufacturers Private Limited and Arihant Techno Economic Park Private Limited ("Subsidiaries"); (c) The Corporate Debtor's Subsidiaries are engaged in the business of Real Estate development and have over 5 Projects under their care; (d) Over 600 employees/workers and their family are dependant of the Respondent and its subsidiary companies; (e) In the event this Company Petition is admitted, the future of over 450 homebuyers of Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and when the same become due and recover the same from the Borrower in the manner hereinafter specified or as part of the Facility (at the option of the Lender). Within 7 (Seven) days of the Lender making a claim along with documentary evidence for payment for reimbursement of any Taxes incurred by the Lender, the Borrower shall refund to the Lender the entire amount paid as Taxes. However, the Borrower shall not be liable to refund any tax imposed on the income of the Lender, including any tax deducted at source under the provisions of the Income Tax Act, 1961. 30. The Facility Agreement was executed for a fixed term of 6 months and therefore, it can be construed that upon maturity, the money would be repaid by the Corporate Debtor to the Petitioner. The Facility Agreement also provides for events of default wherein the Petitioner could seek the payment of entire amounts on account of breaches of performance of obligations by the Corporate Debtor. The events of default as reflected in Facility Agreement are as follows: "Each of the Clauses, as more particularly set out in Clauses 9.1(i) to 9.1(xxxiii) below, describes the circumstances/events/conditions which constitute an Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor to recall the entire loan on non-payment of dues by the Corporate Debtor. The Corporate Debtor has also not disputed that he had availed the said monies and hence, has offered to settle the said outstanding amount by way of proposal on 24.02.2021. Hence, all the ingredient of Section 7 are satisfied and Petition is admitted. 36. Considering the above facts, we come to conclusion that the nature of Debt is a "Financial Debt" as defined under section 5(8) of the Code. It has also been established that there is a "Default" as defined under section 3(12) of the Code on the part of the Debtor. The two essential qualifications, i.e., existence of 'debt' and 'default', for admission of a Petition under section 7 of the I & B Code, have been met in this case. Besides, the Company Petition is well within the period of limitation. This Petition is admitted. 37. Further that, we have also pursued the Form - 2, i.e., written consent of the proposed Interim Resolution Professional submitted along with this application/Petition by the Financial Creditor and there is nothing on record which proves that any disciplinary action is pending against the said proposed Interim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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