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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 ..... talment of term loan from 30.06.2017 by the Corporate Debtor. Hence the Petition is admitted. 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. Petition admitted - moratorium declared. - CP No. 987/IBC/NCLT/MB/MAH/2020 - - - Dated:- 30-4-2021 - Hon ble Smt. Suchitra Kanuparthi, Member (J) And Hon ble Shri. Chandra Bhan Singh, Member (T) For the Petitioner : Mr. Rohit Gupta a/w Savita Nangare, Raj Dani, Advocates i/b Atham Legal. For the Respondent : Mr. Subir Kumar a/w Disha Shah, Advpcates i/b SDS. ORDER Per: Suchitra Kanuparthi, Member (J) 1. The Petitioners/Applicants viz. Suraksha Asset Reconstruction Limited (hereinafter as Petitioner) has furnished Form No. 1 under Rule 4 of the Insolvency and Bankruptcy (Application to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2016. i. Deed of Corporate Guarantee executed by HDIL in favour of Original Lender dated 24.09.2016. j. Mr. Sarang Wadhwan and Mr. Rakesh Wadhwan had executed Personal Guarantee in favour of the Original Lender to secure the said term loan facility of ₹ 150 crores. k. CIBIL report dated 27.11.2019. 6. The financial assets pertaining to the Corporate Debtor along with all the right, title and interest of the Original Lender therein together with the underlying security interest created thereof was assigned by the Original Lender in favour of the Petitioner, acting in its capacity as the trustee of Suraksha ARC -013 Trust, vide Assignment Agreement dated 06.07.2017 under the provisions of the SARFAESI Act, 2002. 7. The Petitioner has enclosed the particulars of the financial debt and the securities held by the Petitioner in part 5 of Form 1 which includes several properties and list of mortgages and charges created their in. The list of properties is reproduced as below; SUBMISSIONS BY THE CORPORATE DEBTOR IN REPLY: 8. The Corporate Debtor in its reply has challenged the maintainability of the section 7 Petition filed by the Petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e structure and construction thereon. b. The Corporate Debtor further submitted that the Petitioner herein by virtue of the Assignment Agreement has stepped into the shoes of the Original Lender to recover the monies from the Petitioner and in order to reduce the liability in the books of HDIL and to smoothly complete the Rehab Component under the Slum Rehabilitation Scheme and the Free Sale Project, entered into an Agreement with HDIL with a specific purpose of the transferring the said Majestic Towers Project in the name of MAZDA Estate Private Limited (the Purchaser). c. The Corporate Debtor submits that the Petitioner herein has filed M.A. 3473 of 2019 before Court III, NCLT, Mumbai Bench for the purpose of seeking directions from the Tribunal in relation to transfer of Majestic Towers Project on the basis of the said Contract wherein the consideration for such transfer of Majestic Towers Project to Mazda Estate Pvt. Ltd. was the reduction of book debt which includes the debt claimed by the Applicant herein against the present Corporate Debtor. d. The Corporate Debtor submits that the M.A. is reserved for orders by the Court III, NCLT, Mumbai Bench. The said M.A. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t HDIL in the capacity of Corporate Guarantor for the loans granted by Yes Bank to present Corporate Debtor. k. Hence, in view of equity and justice the Corporate Debtor prays before this Tribunal to reject the said petition file by the Petitioner on the sole ground that the petition is covered by the principal of re sub-judice and the Petitioner cannot be awarded with the same reliefs, twice. Written submissions filed by the Petitioner: 14. The Petitioner reiterated that it is an asset reconstruction company and assignee of Yes Bank Limited who had originally sanctioned and disbursed the loan that is acquired under deed of assignment dated 06 July, 2017. An amount of ₹ 150 crores was sanctioned by the original lender Yes bank on 21st September, 2016. 15. Corporate Debtor defaulted in repayment of term loan from 30 June, 2017, therefore, the committed default on 30 June, 2017. The Corporate Debtor in his reply has raised two preliminary objections regarding maintainability of the petition as it is hit by principal of res sub judice as the petitioner has filed MA no. 3473 of 2019 in CP no. 27 of 2019 before Hon ble Bench Court 3 of NCLT Mumbai and in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner herein do not form part of the CIRP pertaining to the Corporate Debtor and is not within the purview of the CIRP initiated against the Corporate Debtor. d) Any other and further reliefs as this Hon'ble Tribunal may deem fit in the facts and circumstances of the present case; 18. The Petitioner in reply to the objection filed by the Corporate Debtor with regards to filling of identical claims before the resolution professional of HDIL, this Petitioner submits that in view of the judgement of State Bank of India vs. Athena Energy pvt. Ltd the present petition against the borrower is maintainable and the IA filed before Hon ble NCLT Court III is against the guarantor. FINDINGS 19. The Petitioner being the assignee of the said Financial asset from the original lender vide an assignment agreement dated 06.07.2017 has sought to file present application seeking recovery of 206,77,51,421/- in view of the default of non-payment of amounts by the Corporate Debtor as on 30.06.2017. 20. The Corporate Debtor had availed the term loan of ₹ 150 crores vide sanctioned letter dated 23.09.2016 from YES bank being the original lender. The Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der sec.7 of I B Code seeking initiation of CIRP against the Corporate Debtor (borrower) in terms of default of non-payment of debt. 24. This Bench is of the considered view that the debt of ₹ 150 crores have sanctioned and disbursed by the original lender and there is a default of payment of instalment of term loan from 30.06.2017 by the Corporate Debtor. Hence the Petition is admitted. 25. 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. 26. Further that, we have also perused 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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