9911796707
TMI Blog2022 (9) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... of the claim of the Appellant. Aggrieved by the order dated 21.04.2022, this Appeal has been filed. The brief facts of the case necessary to be noted for deciding this Appeal are: (i) On 01.06.2018, the Appellant sanctioned a loan amount of Rs.100 Crores to the Corporate Debtor (Anuradha Real Estate Developers Pvt. Ltd.). The Loan Agreement as well as the Registered Mortgage was entered on 06.06.2018. Between 11.06.2018 to 10.04.2019, Appellant disbursed total amount of Rs.32.50 Crores to the Corporate Debtor. (ii) The Loan Account of the Corporate Debtor was declared NPA on 01.11.2018. On 08.11.2019, the Appellant issued loan recall notice to the Corporate Debtor. Appellant had issued notice under Section 13(2) of the SARFAESI Act, 2002 dated 05.08.2020 calling upon the Corporate Debtor to make payment of Rs.41,78,22,974/- as on 31.07.2020 alongwith the interest. The Appellant had issued a possession notice and taken symbolic possession under Section 13(4) of the SARFAESI Act, 2002 on 05.12.2020. (iii) On 07.06.2021, the Adjudicating Authority approved the Resolution Plan submitted by the Appellant, Piramal Capital & Housing Finance Limited in the Corporate Insolvency Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transaction Audit Report dated 09.03.2022 which Transaction Audit Report had recorded conclusion that it is not possible to comment on the fact as to whether the loan of Appellant has been discharged. The Adjudicating Authority relied on the internal correspondence between the Corporate Debtor and its sister concern 'RDPL' which were self-serving letters prepared by same Promoters of both entities i.e. the Corporate Debtor and RDPL, which letters were not even marked to the Appellant. The Adjudicating Authority relied on unaudited draft Book of Accounts of the Corporate Debtor as on 31.03.2021 where the loan of the Appellant was mischievously not shown whereas the said loan was duly reflected in the Balance Sheets of the Corporate Debtor for the year 2018-19 and 2019-20. The conclusion drawn by the Adjudicating Authority that the amount laying in the account of DHFL were adjusted towards the loan to the Corporate Debtor were not based on any material and was perverse finding. The Corporate Debtor failed to prove that the loan given to it was discharged by any means, hence, the rejection of the claim of the Appellant is wholly unjustified and unsustainable. Learned counsel for the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the credit amount of Rs.38,51,98,790/- which is laying in the account of DHFL can be adjusted unconditionally towards the loan amount availed by the Corporate Debtor of Rs.32.50 Crore. By the letter details of the account and transaction dated 19.11.2018 was communicated. Learned counsel for the Resolution Professional submits that the Resolution Professional being unable to verify the claim of the Appellant had filed the I.A. 308 of 2022 before the Adjudicating Authority requesting the Adjudicating Authority to adjudicate the claim of the Appellant. The Adjudicating Authority has considered all the aspects of the matter and come to the conclusion that loan given to the Corporate Debtor was repaid by RDPL, hence, the claim of the Appellant could not be admitted. 4. We have considered submissions of learned counsel for the parties and perused the record. 5. From the pleadings of the parties and material on the record following facts are undisputed: (i) The Appellant sanctioned a loan of Rs.100 Crore to the Corporate Debtor on 01.06.2018. (ii) The Appellant disbursed an amount of Rs.32.50 Crore to the Corporate Debtor between 11.06.2018 to 10.04.2019. (iii) On 27.07.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in the account of DHFL were adjusted towards the repayment of the loan of the Corporate Debtor. This Bench takes on record the internal correspondence between Corporate Debtor and its sister concern namely RDPL and the books of accounts of Corporate Debtor dated 31.03.2021. It is not the case of the applicant that his right of repayment of the outstanding amounts is lost by this adjustment. The applicant can exercise and enforce the debt outstanding from the RDPL. 61. In view of the aforesaid, this Bench is of the view that the claim of the applicant namely Piramal Capital & Housing Finance Limited cannot be admitted." 7. The Adjudicating Authority in the impugned order has placed reliance on following for coming to the conclusion that claim of the Appellant cannot be admitted. (A) The internal communication between the Corporate Debtor and RDPL dated 27.07.2020 and 18.02.2021. (B) Balance Sheet for the year 31.03.2021 8. We may first look into the internal correspondence between the Corporate Debtor and RDPL to find out as to whether from the said internal correspondence it can be concluded that loan disbursed to the Corporate Debtor by the Appellant stood discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read in any manner to discharge any loan of the Corporate Debtor which was owed to the Appellant. The letter at best refers to transaction dated 19.11.2018 by the RDPL in the account of DHFL. Any transaction made by the RDPL in account of DHFL on 19.11.2018 cannot ipso facto discharge loan liability of Corporate Debtor owed to the DHFL and there are no material brought on record to show that subsequent to letter dated 18.02.2021, actually the loan was discharged by remitting the amount of Rs.38,51,98,790/- in the loan account of the Corporate Debtor which was received by DHFL. For first time on 18.02.2021, the RDPL is making an offer to adjust the amount laying in the account of DHFL. By mere making an offer, there shall not be any adjustment of loan payable by Corporate Debtor to the Appellant. There has to be any transaction after 18.02.2021 to show that the loan of Corporate Debtor was actually discharged by making payment of Rs.38,51,98,790/-. It is further relevant to notice that apart from the above two letters dated 27.07.2020 and 18.02.2021 no other correspondence is even claimed by Corporate Debtor or RDPL for adjustment of the loan of the Corporate Debtor payable to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attached to such Balance Sheet. Furthermore, in the Balance Sheet loan of Rs.32.50 Crore which loan was reflected earlier in the Balance Sheet has just been deleted whereas in the same Balance Sheet as on 31.03.2020, the loan of Rs.32.50 Crore has been reflected of DHFL. The Unaudited Balance Sheet as on 31.03.2021 although does not mention the loan to continue as on 31.03.2021 but there are no details in the Balance Sheet as to how the loan stood discharged. Corporate Debtor's Balance Sheet as on 31.03.2021 which is unaudited and has not even show as to when it was submitted to the ROC, placing reliance by Adjudicating Authority on such Balance Sheet to accept the case of the Resolution Professional that the debt stood discharged is wholly inappropriate and unsustainable. In the Balance Sheet prepared by the Corporate Debtor, mere non-mention of loan as on 31.03.2021 does not prove discharge of the loan in any manner. We, thus, are of the view that both the reasons relied by the Adjudicating Authority for coming to the conclusion that the loan of the Appellant of Rs.32.50 Crore stood discharged does not prove in any manner the discharge of the loan. The Adjudicating Authority fel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PL alongwith ledger filed by the Resolution Professional in Affidavit in Reply as Annexure R-10. When we look into Annexure R-10 filed alongwith the Reply, both the transactions dated 19.11.2018; payment of Rs.38,51,98,790/- paid to DHFL and further received from DHFL is reflected in the account. We extract entry dated 19.11.2018 as contained in Annexure R-10 which is to the following effect: 18. The above part of the account of RDPL clearly indicate that payment of Rs.38,51,98,790/- was made from the IDBI Bank Account of the RDPL to the DHFL Bank and on the same day another entry indicate that the same amount was received from DHFL Bank. Thus, the payment of PEMI/EMI was made by RDPL to DHFL and on the same day they received the same amount in other account as payment from DHFL Bank, which clearly indicates that the amount of Rs.38,51,98,790/- was received in the Bank Account of RDPL and is not laying in credit with the DHFL which can be adjusted as referred to in the letter dated 18.02.2021. The above Statement of Accounts which Statement is filed by the Respondent themselves prove that the amount of Rs.38,51,98,790/- is the amount paid by the RDPL to DHFL and same amount was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a borrower with the object of receiving consideration in the form of time value of money, when in fact the parties have entered into the transaction with a different or an ulterior motive. In the present case, the claim of the Appellant has not been admitted on the ground that the loan of the Appellant to the Corporate Debtor stood discharged by RDPL. There is no finding in the impugned order terming the transaction as a collusive transaction. Hence, the contention of the Respondent, in the above view, is rejected. Furthermore, there is no denial by Corporate Debtor of disbursal of loan of Rs. 32.50 Crore. 21. We, thus, are satisfied that there are no material to indicate that the loan which was disbursed by the DHFL to the Corporate Debtor was discharged at any point of time. The Adjudicating Authority committed error in refusing to admit the claim of the Appellant. Resolution Professional also did not correctly and properly look into the materials placed before it by the Appellant as well as the Ex-Director of the Corporate Debtor and erred in not verifying the claim of the Appellant. In view of the foregoing discussion, we are satisfied that order passed by the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
