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2023 (3) TMI 448 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHIDirection to Resolution Professional (RP) to exclude 205 Flats from the pool of the Assets of the Corporate Debtor - lifting of Corporate Veil - whether the Adjudicating Authority was justified in excluding 205 Flats from the pool of the Assets of the Corporate Debtor? HELD THAT:- Having regard to the nature of transactions involved herein and the contention of the ‘Corporate Debtor’ that the amount involved is a Sale Consideration and not a loan and the argument of M/s. Nisus Finance and Beacon Trusteeship Limited that right, title and interest of 268 Flats rests with them, we are of the considered view that this is a fit case for the ‘Corporate Veil’ to be lifted, to the extent to see the ‘Nature of Transaction’ whether ‘loan’ or ‘Sale Consideration’ as contended by the Appellant as laid down by the Hon’ble Supreme Court in ARCELORMITTAL INDIA PRIVATE LIMITED VERSUS SATISH KUMAR GUPTA & ORS. [2018 (10) TMI 312 - SUPREME COURT]. The Homebuyers and the effected parties are not estopped from approving that a Transaction is a ‘Loan Transaction’. Contractual interpretation must ascertain the real intention of the parties. The genesis of an Agreement and the context is to be seen as a whole and the intent of a Transaction cannot be at variance with the actual objective. Clauses 7.1 and 7.2 of Part II of the DTD were amended which provide that the Principle Amount was to be paid by the Issuer Company in four instalments namely 31.03.2019, 30.06.2019, 30.09.2019 & 31.12.2019 meaning thereby that the Issuer Company and the Corporate Debtor were under legal obligation to pay the 1st instalment by March 2019 - This Tribunal is of the earnest view that the ‘Corporate Debtor’ had failed to fulfil the obligations under the DTD and other documents executed to guarantee/secure the repayment of the amount disbursed by the ‘Financial Creditors’ towards issuance of the Non-Convertible Debentures. In the instant case, keeping in view the flow of funds, the nature of transactions, the amended DTD, the Term Sheets and the entire material on hand, this Tribunal is of the earnest view that the amount received from the Issuer company is a ‘Loan’ and not a Sale Consideration and the BBAs executed are secured documents - Once the Resolution Plan is approved by the CoC, the ‘Financial Creditors’ are estopped from seeking any Amendments/Modifications in the Information Memorandum. In the instant case, the Information Memorandum was prepared on 14.01.2021 and the Resolution Plan was approved in the 8th CoC Meeting which concluded on 03.05.2021. There are no substantial reasons given for the Creditor not having raised this issue or filed an Application in the Interim Period between 14.01.2021 and 03.05.2021. The Order of the Adjudicating Authority excluding the 205 Flats from the pool of the Assets of the Corporate Debtor, is set aside - Appeal allowed.
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