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TMI Blog2024 (9) TMI 1607X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 5,70,00,000/- became payable on 05.01.2021. It is submitted that this instalment was paid by the Corporate Debtor on various occasions till 02.04.2021. Thereafter, 2nd EMI instalment of Rs. 34,20,00,000/- became payable on 05.04.2021. Part Payments were made for this end EMI till 21.06.2021. The 3rd EMI became payable on 05.07.2021 which the Corporate Debtor failed to honour. During the hearing of the matter, this aspect has not been denied by the Corporate Debtor. Thus, the default has occurred on 05.07.2021 and is clearly not barred under Section 10 A of IBC. Record of Default - Claim is neither based on the record of default recorded with the Information Utility nor based on any other record or evidence demonstrating default as per Regulation 2A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- Admittedly, the financial creditor has not annexed record of default recorded with IU nor any evidence as specified under Regulation 2A. However, financial creditor has annexed the loan sanction letter dated 03.06.2020, loan agreement dated 03.06.2020 duly executed by the Corporate Debtor co-borrower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within limitation. Therefore, this company petition is admitted and also looking at the consent given by the Insolvency Professional, Mr. Ravi Prakash Ganti appointed as an IRP, with a direction to the Financial Creditor to pay remuneration to the IRP and his expenses until the constitution of CoC. Petition allowed. - SHRI CHARANJEET SINGH GULATI SMT LAKSHMI GURUNG HON BLE MEMBER (T) HON BLE MEMBER (J) For the Financial Creditor: Adv. Ahsan Allona i/b JSA For the Corporate Debtor: Adv. Vinita Melvin i/b ANB Legal ORDER Per: - Smt. Lakshmi Gurung (Judicial Member). 1. The Present Company Petition (IB)-248(MB)/2022 has been filed under section 7 of Insolvency and Bankruptcy Code, 2016 ( IBC/Code ) by Indiabulls Housing Finance Limited, ( Financial Creditor/Petitioner ) for initiating Corporate Insolvency Resolution Process ( CIRP ) against Essel Home Private Limited ( Corporate Debtor/ Respondent ) for default in repayment of Rs. 2,60,98,26,700/- (Rupees Two Hundred and Sixty Crores Ninety-Eight Lakhs Twenty-Six Thousand and Seven Hundred only). Brief Relevant Facts: 2. The Petitioner had sanctioned a loan of Rs. 190,00,00,000/- (Rupees One Hundred and Ninety Crores) vide sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory of financial debt under Section 5(8) of the Code. The Petitioner is therefore, not a financial creditor and cannot maintain this instant Petition. b. It is further submitted that even if assuming that Respondent is liable to pay amounts to the Petitioner, the cause of action to file a Petition under Section 7 of the Code starts on and from the date of first date of default. Schedule II of the Loan Agreement lays down Payment/ Repayment Schedule with various due dates and corresponding interest/ principal payable. It is stated that Gnex had with some delay cleared the first two instalments towards interest as laid down under the repayment schedule, however, the principal due on 05.01.2021 Rs.9,50,00,000/ (Rupees Nine Crores Fifty Lacs Only) has not been paid and the first date of default has occurred on 05.01.2021. Hence, the petition is hit by bar of Section 10A of the Code. c. Further, the record of default has not been provided in accordance with Section 7(3) of the Code. The claim is neither based on the record of default recorded with the Information Utility nor is it based on any other record or evidence demonstrating default as per Regulation 2A of the Insolvency and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.06.2023 for reporting settlement. 20.06.2023 Corporate Debtor are present and requested for an adjournment on the ground that both parties have entered into an amicable settlement and they will file appropriate application for withdrawing the main company Petition before the next date of hearing. List this matter on 28.06.2023. 30.08.2023 2. Ld. Counsel appearing for the Respondent submits that the settlement talks are going on between the parties and they have already made the part payment and the next installment will be paid by 25.09.2023. However, no settlement agreements placed on record. 3. Be that as may be, ld. Counsel appearing for the Petitioner consented for listing of this matter after 25.09.2023, therefore, list this matter on 19.10.2023 for reporting settlement. 19.10.2023 and requested time on the ground that settlements talks are going on between the parties. List this matter on 02.01.2024 for reporting settlement. 11. On 28.02.2024, the Court was informed that settlement failed and parties are ready to argue the matter. 12. From the aforementioned daily orders, it is evident that there were a number of adjournments on the ground of some kind of settlement betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liabilities as borrower/co-borrower. 15. Therefore, the first defense of the Corporate Debtor that there is no existence of financial debt is rejected. 16. The Petitioner has placed on record Revised Repayment Schedule letter dated 12.10.2022 in respect of loan of Rs. 190 Crores to Gnex. The said Repayment Schedule has not been disputed by the Respondent. According to the Repayment Schedule, 1st EMI instalment of Rs. 5,70,00,000/- became payable on 05.01.2021. It is submitted that this instalment was paid by the Corporate Debtor on various occasions till 02.04.2021. Thereafter, 2nd EMI instalment of Rs. 34,20,00,000/- became payable on 05.04.2021. Part Payments were made for this end EMI till 21.06.2021. The 3rd EMI became payable on 05.07.2021 which the Corporate Debtor failed to honour. During the hearing of the matter, this aspect has not been denied by the Corporate Debtor. Thus, we note that default has occurred on 05.07.2021 and is clearly not barred under Section 10 A of IBC. 17. The next contention of the Corporate Debtor that the claim is neither based on the record of default recorded with the Information Utility nor based on any other record or evidence demonstrating def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court that part payment of loan has already been made and that next instalment would be paid on 25.09.2023. Therefore, this contention of the Corporate Debtor is also rejected. 20. The Corporate Debtor has failed to place on record any document or bank statement to establish that repayment of the loan demanded as per SARFEISI Notice dated 20.01.2022 has been fully made. 21. The Corporate Debtor next argued that the Loan Agreement is not adequately stamped and hence, proceedings based thereon cannot be maintained. We rely on the judgement Ashique Poonamparambath vs. Federal Bank - 2021 SCC OnLine NCLAT 1769 and hold that there are sufficient documents like loan sanction letter, loan disbursement proof, notice under section 13(2) of SARFESI Act, 2002, Revised Repayment Schedule dated 12.10.2022 and Corporate Debtor own conduct of making statement before this Court about part payment of the loan, which establish the existence of debt and default. 22. In view of the fact that existence of debt and default has been established, default amount is more than threshold limit of Rs. 1 crore, the contention of mentioning different amount in the notice and in the part IV of the petition is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudicating authority that the adjudicating authority may reject an application and not otherwise. (Emphasis Provided) 26. In view of the aforementioned judgement it is clear that the Adjudicating Authority only has to determine whether the debt was due and remained unpaid. If the adjudicating authority is of the opinion that a default has occurred, it has to admit the application. In the present case, sufficient evidence has been adduced by the Petitioner to prove the debt and default. 27. The default is to the tune of Rs. 260 Crores (which is much above the threshold of Rs.1 Crore). We are of the considered view that the Financial Creditor has proved existence of debt and default. Further the debt is in excess of Rs. 1 Crore and thus above the threshold limit mandated in Section 4(1) of the Code. Also the Petition filed is within limitation. Therefore, we hereby admit this company petition and also looking at the consent given by the Insolvency Professional, we here by appoint Mr. Ravi Prakash Ganti as an IRP, with a direction to the Financial Creditor to pay remuneration to the IRP and his expenses until the constitution of CoC. 28. Accordingly, this Company Petition is admi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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