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TMI Blog2022 (10) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... greement dated 31.12.2014. It is further observed that the Resolution Professional of the Financial Creditor has only furnished the proof of Record of Financial Information from National E-Governance Services Limited but not the Status of Authentication which implies the debt and its default not yet reflected on National E-Governance Services Limited. Petition dismissed. - Company Petition No. (IB)-270(ND)/2021 - - - Dated:- 30-9-2022 - P.S.N. Prasad, Member (J) And Rahul Bhatnagar, Member (T) For the Appellant : Palash Singhai, Adv. For the Respondents : Zorawar Singh and Hitesh Mankar, Advs. ORDER P.S.N. Prasad, Member (J) 1. The present application is filed, on 17.05.2021, by the Financial Creditors un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2018, the Applicant shall indicate to the Borrower its intention in writing regarding the exercise of call option to convert the loan into equity shares. v. Clause 11 of the Agreement stipulates that till 31.03.2018, there will be no interest payment on the loans by the borrowers to the lenders in lieu of the call option to be exercised as mentioned in the agreement. However, the Applicant herein did not avail the call option to convert the loan into equity shares by 31.03.2018 and subsequently the Applicant became entitled to payment of interest w.e.f. 01.04.2018 in terms of clause 11 of the agreement and the first instalment became due and payable on 30.04.2018 as per the applicable rate of interest @ 7.20% of Reserve bank of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein. The CD was called upon to make the payment of the amount outstanding. x. The Resolution Professional of the Applicant again issued a notice dated 09.03.2021 to the CD, requesting to clear the outstanding debt towards the FC as the Balance Sheet as well as the ledger account of CD reflected its outstanding debt and liability towards FC which was due and payable as the CD. The Applicant requested the CD to clear and pay the outstanding liability of Rs. 16,10,21,76,275/- as on 28.02.2021. However, the CD did not respond to the aforementioned requests of the Applicant and chose not to repay the amount due and payable since 2018 which is an admitted debt. The CD is in continuous default by not paying interest on the same since 30.04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement, the question of repayment of loan or any part thereof and Default' would have arisen only if the parties had decided on a schedule for repayment and the loan agreement along with interest was not repaid prior to the term of the loan agreement, i.e. till 31st March, 2025. However, no such communication proposing due dates was ever received from the Applicant Lender. It is submitted that even the pursuant to initiation of corporate insolvency resolution process of the Applicant, no attempt was made by the Resolution Professional to reach out to the Respondent and discuss a mechanism for repayment of loan. To the contrary, the Resolution Professional of the Applicant lender chose to straightaway issue demand notices and foreclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option to convert the loan into equity shares as per clause 5 of the loan agreement. Further, no communication was made to the Corporate Debtor to exercise the call option till date which demonstrates the intention of the Financial Creditor whereas the Financial Creditor never wanted to convert the loan into equity. Further, the parties to the agreement mutually agreed the repayment schedule at regular intervals and resultantly, the Corporate Debtor repaid certain amount till October 2019, however, thereafter the Corporate Debtor stopped making payments towards the repayment of Principal amount. It is submitted that the Corporate Debtor always defaulted in repayment of interest accrued every month and the default of the Corporate Debtor is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to discuss the possibility to repay the outstanding liability. vii. The CD has itself admitted the fact that they are in distress and initiated insolvency against Alchemist Infra which does not have any bearing on the liability owed to the Financial Creditor. 5. The Applicant has also filed their written submission and reiterated all the submissions as discussed in the petition, therefore, not repeated. 6. We have heard the submission made by the Ld. Counsels of both the parties and perused the pleadings. It is observed that the present application is premature because as per the agreement dated 31.12.2014, the tenure of the loan is for a period of ten years starting from 31.03.2015 to 31.03.2025, which has not met the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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