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TMI Blog2021 (11) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial Creditor is hereby admitted - the application is complete and has been filed under the proper form. The debt amount is more than Rupees One Lakh and default of the Corporate Debtor has been established and the application deserves to be admitted. Application admitted - moratorium declared. - CP (IB) No. 1422/MB-IV/2020 - - - Dated:- 6-10-2021 - Rajesh Sharma, Member (T) And Suchitra Kanuparthi, Member (J) For the Appellant : Shyam Kapadia, Fatema Kachwalla and Jash Shah i/b J. Sagar Associates, Advocates For the Respondents : Vibhav Krishna, Devang Lakhotia, Tahir Prande and Anmol Bartaria i/b Juris Consillis ORDER Rajesh Sharma, Member (T) 1. This is an application being C.P. (IB) No. 1422/NCLT/MB/C-IV/2020 filed by Indiabulls Housing Finance Limited, the Financial Creditor/Applicant, under section 7 of Insolvency Bankruptcy Code, 2016 (I B Code) against Raghuleela Infraventures Private Limited, Corporate Debtor, for initiating Corporate Insolvency Resolution Process (CIRP). 2. The Application is filed by Ms. Ume Salma Mansuri, authorised representative of Financial Creditor vide its Board Resolution dated 15.09.2020, claiming total defau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Financial Creditor. d) The Counsel for the Financial Creditor also submitted that the Financial Creditor had issued two separate Loan Recall Notices for each loan facility; both dated 09.03.2020 demanding the outstanding amounts under the provisions of the SARFAESI Act, 2002 and invoked the personal guarantees provided there under. The said Loan Recall Notices are placed at pp. 123-145 as Annexure '7' of the Petition. Despite various requests and communication, the Corporate Debtor has not paid the outstanding dues to the Financial Creditor. e) The Counsel for the Financial Creditor submitted that as on 03.11.2020, a total aggregate amount due and payable by the Corporate Debtor is ₹ 144,11,30,937/- (Rupees one hundred forty-four crore eleven lakh thirty thousand nine hundred and thirty-seven only) 5. The Corporate Debtor has submitted in the reply as under: a) The Counsel for the Corporate Debtor submitted that there is an Arbitration Proceeding pending before the Hon'ble Delhi High Court bearing Arbitration Petition OMP (I) (COMM) No. 298 of 2020 - Indiabulls Housing Finance Ltd. vs Raghuleela Infraventures Private Limited Ors, filed on 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urity and mortgaged to the Financial Creditors and the receivables hypothecated to the Financial Creditor for the aggregate loan of ₹ 283 crore is intact and available and is in complete and control of the Financial Creditor. The shares of the Corporate Debtor pledged to the Financial Creditor together with the original share certificates have been handed over to the Financial Creditor under letter dated 24.03.2017 is in control and domination of the Financial Creditor. e) Valuation Report dated 24.06.2020 was prepared by Jones Lang LaSalle India (JLL), reputed valuers wherein the market value of the Project Property was assessed at ₹ 6410 crore for development of total area 40,62,400 sq. Ft. The area of 96,597 sq. ft. has been offered as security under the two loan agreements, therefore as per the Valuation Report the value of the security is approximately 152 crore which is more than the claim in the Petition and which is more than 5 time the value of the principal amount of the outstanding loan. The valuation report dated 24.06.2020 is annexed as Exhibit 'H' of the reply. f) The Financial Creditor has deliberately suppressed and not disclosed the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve paid approximately ₹ 251.09 crore in last 4 years under the loan account and the principal outstanding amount for both the loan accounts is acknowledged by the Financial Creditor and the Corporate Debtor. The details of payments are as follows: i) For Loan Account No S000239815 - the total amount disbursed aggregate ₹ 131.40 crore and approximately ₹ 124.64 crore has been repaid; ii) For Loan Account No S000239814 - the total disbursed aggregates ₹ 150 crore and approximately ₹ 126.45 crore has been repaid. j) Around August, 2018, the Financial Creditor issued NOC/release of charge for 59 units/apartments: i) Term sheet dated 03.08.2018 between Raghuleela Infraventures (Corporate Debtor) and Indiabulls High Yield Fund for loan of ₹ 65 crore against security of 59 units. ii) NOC dated 23.10.2018 issued by Indiabulls Housing Finance to Indiabulls High Yield Fund and Indiabulls Opportunities Fund for release of Mortgage/Charge over 59 units for availing loan of ₹ 65 crore iii) Debenture Trust Deed dated 31.10.2018 executed between IDBI Trustees and Raghuleela Infraventures on the basis of NOC dated 23.10.2018 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed an email letter dated 30.09.2020 to the Corporate Debtor to execute Allotment Letters for 5 Flats in Tower B, C and D, Imperial Heights, Goregaon, Mumbai which is subject matter of the present Petition. Copy of the said email dated 30.09.2020 is annexed as Exhibit 'I' of the reply. n) The meeting of senior officials of Financial Creditor and Corporate Debtor had taken place during the lockdown to discuss the repayment of various loans sanctioned by Financial Creditor and explore the solution for restructuring the payment of loan on account of economic hardship and financial difficulties faced by the Corporate Debtor. The Corporate Debtor issued letter dated 19.09.2020 to the Financial Creditor for restructuring the payment of loan and thereafter the sister concern of the Corporate Debtor issued letter dated 08.10.2020 to the sister concern of the Financial Creditor with reference to various loans including the loan availed by the Corporate Debtor and informed that sum of ₹ 206 crore was being deposited in Account No. 1145051788 maintained with Punjab National Bank, Ilaco House Branch, Mumbai on 09.10.2020 and a token payment to show bonafides so that restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond loan iv) TDS calculations v) Per day default interest vi) Per day 2% interest Rate of Interest @ 24.26%. The initial loan document showed interest lower rate. q) The Petition has been filed in November, 2020 despite knowledge of the disruption of day to day activities and business due to Covid-19 pandemic and the lockdown announced by the Government of Maharashtra from 16.03.2020 and by Government of India from 24.03.2020 which has been extended from time to time till 30.04.2021. The Financial Creditor had full knowledge that the Corporate Debtor is severely impacted in the business activities, construction work had stopped and the demand for real estate is depressed and the cash flow is vitally affected and that the Corporate Debtor is facing severe economic hardship and financial difficulties faced. r) The Corporate Debtor submits that the Corporate Debtor has already given an undertaking to the Hon'ble Delhi High Court in OMP (I) (COMM) No. 298 of 2020 that the Corporate Debtor shall not take any step to dispute of the whole or part of the Project Property value with the intention of obstructing or delaying the claim of the Financial Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal for seeking initiation of CIRP against a corporate debtor. d) Further, the Financial Creditor relying upon the judgement of the Hon'ble Supreme Court in the case of Indus Biotech Private Limited v. Kotak Venture (Offshore) Fund , submits that it is now settled that if the conclusion is that there is default and the debt is payable, due to which the Adjudicating Authority proceeds to pass the order as contemplated under sub-section 5(a) of Section 7 of IB Code to admit the application, the proceedings would then get itself transformed into a proceeding in rem having erga omnes effect due to which the question of Arbitrability of the so called inter se dispute sought to be put forth would not arise. Thus, there is no bar on admitting the present application by this Tribunal and initiating CIRP against the Corporate Debtor. Findings/Observations: 7. We have heard the submissions of the counsels on both the sides and observed as under: a) It is observed from the records submitted by both the sides that the Corporate Debtor nowhere in his reply denied the default made by him nor he has disputed the debt amount claimed by the Financial Creditor in his Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... linary proceedings are pending against him ORDER This Application being C.P. (IB) No. 1422/MB/C-IV/2020 filed under Section 7 of I B Code, 2016, presented by Indiabulls Housing Finance Limited, Financial Creditor/Applicant against Raghuleela Infraventures Private Limited, Corporate Debtor for initiating corporate insolvency resolution process is admitted. We further declare moratorium u/s. 14 of I B Code with consequential directions as mentioned below: I. That this Bench as a result of this prohibits: a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d) the recovery of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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