9911796707
TMI Blog2020 (6) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... d interest, under the debenture trust deed dated April 13, 2017. 2. Brief facts of the case, as mentioned in the company petition, which are relevant to the issue in question, as follows : (1) M/s. Vistra ITCL (India) Ltd. (petitioner No. 3/financial creditor No. 3) (formerly known as IL and FS Trust Co. Ltd.) has been appointed as trustee ("trustee") of the "India Asset Growth Fund" (petitioner No. 1/ financial creditor No. 1) and India Asset Growth Fund-II (petitioner No. 2/ financial creditor No. 2) ("Fund") both trust established as per the provisions of the Indian Trust Act, 1882 and registered as Category-II AIF under the SEBI (Alternative Investment Funds) Regulations, 2012 bearing registration numbers IN/AIF2/12-13/0037 and IN/AIF2/15-16/0212 respectively and the fund scheme "annuities in senior secured estate transactions-1" under which the fund has invested in the company. (2) CMRS Projects P. Ltd. (respondent/corporate debtor) is a private limited company was incorporated on December 20, 2013 bearing CIN : U45205KA2013PTC072665 under the Companies Act, 1956. Its nominal share capital is Rs. 20,00,000 (rupees twenty lakhs only) divided into 2,00,000 (two lakhs) equit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 (rupees two crores only) disbursed on April 26, 2017. (6) In pursuant to the DSAs and in compliance of regulation 13 of the SEBI (Debenture Trustees) Regulations, 1993 and rule 18 of the Companies (Share Capital and Debenture) Rules, 2014, debenture trust agreement (hereinafter referred to as "DTA") dated April 7, 2017 and debenture trust deed were executed on April 13, 2017. Pursuant to the DTA and DTD, petitioner No. 3 was appointed as debenture trustee for the benefit of the debenture holders, and was entrusted to hold the secured assets and all receivables for the due benefit of repayment to the debenture holders under the DTD and other transaction documents. The corporate debtor has defaulted in repayment of the debenture subscription amount and interest thereon and the debt fell due on August 24, 2018. (7) It is submitted that the corporate debtor has mortgaged several properties and Landstar Homes, CMRS Builders, CMRS Enterprises have executed guarantees in favour of the financial creditors guarantee the repayment of the NCD subscription amounts. Mr. Chennam Rangaswamy and Lakshmi Ramaswamy being the directors of the corporate debtor have executed personal guarantees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akeover of the project, the corporate debtor will pay a sum of Rs. 4,00,00,000 (rupees four crores only) on or before August 30, 2020. (iii) The corporate debtor will make payment of Rs. 1,00,00,000 (rupees one crore only) towards closure of loan, upon issuance of NOC by financial creditor in respect of CMRS Moonstone on or before September 30, 2020. (iv) The corporate debtor will make payment of Rs. 2,00,00,000 (rupees two crores only) towards closure of loan, upon issuance of NOC by the financial creditor in respect of Northstar Project on or before November 30, 2020. (4) It is declared that the corporate debtor can adhere to the proposal provided the financial creditor co-operates in issuance of NOC and release security in favour of the corporate debtor or third party developers. The sums disbursed by the financial creditors are utilized for the specific purposes of constructing and developing the projects undertaken by the corporate debtor. The hon'ble Finance Minister has announced SWAMIH Investment Fund, which is a special window in the form of alternative investment fund for completion of construction of affordable and mid- income housing projects. The fund is set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 164(2) of the Companies Act, 2013 for a period of 5 years from November 1, 2017 to October 31, 2022. (3) It is stated that the financial creditor have funded Rs. 13,00,00,000 (rupees thirteen crores only) between April, 19 and April 26, 2017 in three tranches and the financial creditor has not deducted any amounts towards any expenses much less than the amount of Rs. 92,84,775. The corporate debtor has paid a sum of Rs. 3,93,95,517. The financial creditor has received a sum of Rs. 3,09,08,923 towards interest and default interest on various dates. It is denied that a sum of Rs. 1,75,00,000 was paid towards release of first and exclusive charge over First Floor, No. 189 admeasuring 3,250 sq.feet and 4,000 sq.feet of undivided shares in CMRS Radhakrishna Enclave and the charge on the said immovable property was released on the payment of Rs. 1,30,00,000 on August 2, 2019. The corporate debtor, through its director, Chennam Rangaswamy, has made several proposals for settlement in person and over telephonic conversation but has miser ably failed to honour any of its commitments. The corporate debtor has not communicated any proposals for settlement in writing till date so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fty lakhs only) is in line with the earlier proposal accepted by the financial creditor. However, only the timelines for repayment have undergone change due to circumstances beyond the control of the corporate debtor. 8. Subsequently, the corporate debtor has filed another memo dated June 16, 2020 by, inter alia, stating as follows : (1) The corporate debtor has seventeen (17) employees as on date. It is incurring expenses of approximately Rs. 3,00,000 (rupees three lakhs only) towards monthly salaries to is employees. It has engaged contract workers for the purpose of constructions. However, due to the outbreak of Covid-19, the contract workers have migrated to their native. Therefore, the corporate debtor was unable continue its construction. It has one hundred and ten (110) home-buyers and various other vendors, who will be severely affected and prejudiced if any adverse orders are passed in the case. 9. In the light of the above rival contentions made by the parties, the main points arise for consideration, in the instant case, are as follows : (1) Whether the instant company petition is filed with an intention to initiate CIRP in respect of corporate debtor, in consonanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has enclosed a copy of e-mail January 10, 2020 sent on behalf of financial creditors, which reads as under : "Dear Chennam" please note that, your one-time settlement proposal of Rs. 14.50 crores is been approved by our competent authority. This one- time settlement amount need to be paid as below : * An amount of Rs. 6 crores to be paid by January 31, 2020. * An amount of Rs. 8.50 crores to be paid by March 31, 2020. A detailed settlement agreement will be shared shortly. Best regards Vishnu P. Rathore, Chief Operating Officer, Private Equity. 12. As stated supra, the petitioners have not denied the above e-mail but it says that it has not communicated any proposals for settlement in writing till date so as to enable it to assess, consider, and seek approval. Therefore, the memos filed by the respondent, as detailed supra, shows that it is still willing to settle the issue, and urging the petitioners to take into consideration the pandemic situation prevailing in the country in general and real estate sector in this particular. 13. The debenture trust deed dated April 13, 2017 executed between M/s. CMRS Projects P. Ltd. (corporate debtor) and its promoters and Esse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n expenditure of approximate amount of Rs. 3,00,000 (rupees three lakhs only) towards monthly salaries to its employees. In addition, the corporate debtor has 110 home-buyers and various other vendors, who will be severely affected and prejudiced, if CIRP is initiated. And it would be very difficult to take care of interest of various stake holders during CIRP process under the control of IRP/RP. The Adjudicating Authority cannot ignore the devastating effect being caused to Indian economy due to out- break of Covid-19 pandemic and amendments takes place recently suspending provisions of sections 7, 9, and 10 of the Insolvency and Bankruptcy Code, 2016, for initiation of CIRP for a period of six months or such further period, not exceeding one year from such date, in terms of Gazette of India, Extraordinary, Part II-section 1, published by the Authority, the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020 (See [2020] 10 Comp Cas-OL (St.) 19.), Notification No. CG-DL-E-05062020-219746, dated June 5, 2020. And the Government of India has also announced various reliefs to revive the economy of the Country including Real Estate sector. It is true that since the default occur ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
