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TMI Blog2021 (4) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... uisite Form, under the head "Particulars of Financial Debt" the total amount of Debt granted is stated to be Rs. 150,00,00,000/-, and the amount claimed to be in default is Rs. 2,06,77,51,421/- including interest. The date of default is stated to be 30.06.2017. BRIEF HISTORY OF THE CASE 3. The Corporate Debtor has availed a Term Loan Facility of Rs. 150 crores from Yes Bank Limited (Original Lender) on 23.09.2016. The Corporate Debtor has executed various financial and security documents in favour of the original lender on 24.09.2016. 4. The aforesaid loan was disbursed in the following manner: Date of Disbursement Amount of Disbursement 26.09.2016 145,00,00,000/- 27.02.2017 5,00,00,000/- Total 150,00,00,000/- The date of defaults as mentioned in the petition in form 1 is 30.06.2017 and the outstanding dues is as follows; Principal Outstanding Dues Rs. 150,00,00,000/- Interest Rs. 48,59,07,541/- Penal Interest Rs. 8,12,17,626/- Expenses Rs. 6,26,254/- Total Rs. 2,06,77,51,421/- 5. Following are the documents evidencing the sanction and disbursement of the aforesaid Loan which are attached to the Petition; a. Sanction letter dated 23.09.2016, duly accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent, Court III, NCLT (Mumbai Bench) decides I.A. 3473 of 2019 in favour of the Applicant, the entire debt owed to the Applicant herein will be paid to the Applicant herein in the manner provided in the said Contract. 12. The said contract is signed by HDIL (currently undergoing CIRP) through its Directors/Promoters (currently in judicial custody) and hence, the Corporate Debtor is unable to produce a copy of the said contract. The said contract clearly states the manner in which the debt was to be transferred as agreed by the Applicant itself. Is it submitted before this Tribunal to direct the Applicant to produce a copy of the said contract as it directly affects the subject-matter of the present Petition. 13. The Corporate Debtor further submits that the said Petition is not maintainable in law and is liable to be dismissed at the threshold on the following grounds, each of which are taken without prejudice to the other; a. The Corporate Debtor submits that the Corporate Debtor had availed the Term Loan facility from Yes Bank and had executed various security documents in order to secure the same. It is further submitted that the Corporate Debtor had amongst other securities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor. g. It is further pertinent to note that, the asset/security in question i.e. Majestic Towers Project itself is an asset worth more that 1100 crores and that is said M.A. is decided in favour of the Petitioner, the captioned petition before this Tribunal consideration would in itself be infructuous as the debt amount claimed by the Petitioner would not subsist and the present petition would stand no grounds. h. The Corporate Debtor submits that the conduct of the Petitioner is purely to squeeze the Corporate Debtor and to keep all the remedies open to resuscitate its claim. That the Petitioner on one has filed its claim before the Resolution professional, which is already admitted in its entirety, and on the other hand has filed the said M.A. 3473 of 2019 before the Court III, NCLT, Mumbai Bench to give effect to the said agreement and to get the Majestic Towers Project transferred in its name and now has come before this Tribunal to initiate the Section 7 proceedings against the Corporate Debtor for the same set of reliefs and for the identical claim. i. It is further important to note that, the Petitioner has also filed its claim before the Resolution Professional o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the application filed by the Applicant is ultra vires of the provisions of the Insolvency and Bankruptcy Code, 2016 and is wholly against the objective of maximization of value of assets owned by Corporate Debtor under insolvency. Pg. 6 "i. The Applicant/intervenor submit that IA No. 3473 of 2019 filed by Suraksha ARC is not maintainable as the said application is filed on the basis of a non-executed/concluded contract between the Corporate Debtor and Mazda Estate Pvt. Ltd., wherein Suraksha ARC is not a party. It is the case of the Applicant/Intervenor that Suraksha ARC was not even even a beneficiary under the nonconcluded contract between the Corporate Debtor and Mazda Estate Pvt. Ltd". "However, since the same never occurred, no right under the contract can be claimed by Suraksha ARC, who is at the best a third party to the contract." 17. In any event the petitioner respectfully submitted that pendency of MA has no bearing in the present case. Petitioner is entitled to procedure against borrower and guarantor simultaneously. Petitioner has sought relief along with the home buyer before NCLT Court3 to keep one of the assets out of CIRP process and the prayers file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount produced by the petitioner also confirmed the disbursal of monies to the Corporate Debtor. The Petitioner has also filed statement of account of the Corporate Debtor from 26.09.2016 to 30.07.2017 which shows the disbursal of monies and closing balance which is reproduced as below; The Petitioner has also filed the original sanction letter received by the original lender Yes Bank dated 23.09.2021. The petitioner issued default notice dated 15.06.2018. 22. The Corporate Debtor filed its reply and has not raised any dispute with regard to sanction of loan, disbursement of loan, signing of documents and default, but questioned the maintainability of this Petition under section 7, in view of the fact that the Petitioner has filed M.A. 3473 of 2019 in C.P. 27 of 2019 before Hon'ble Court 3 NCLT, Mumbai. 23. It is pertinent to note that MA 3473 of 2019 filed by the Petitioner seeking orders from the Hon'ble Tribunal in relation to the Majestic Towers Project (Asset owned by Corporate Debtor) to Mazda Estate on the basis on non-concluded contract. This application is necessarily against the Guarantor and seeking relief along with other home buyers to keep one property away from C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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