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2019 (2) TMI 1865 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - whether the ICICI Bank UK PLC is a party to the agreement executed between the Financial Creditor and the Corporate Debtor. Is it directly a party or beneficiary of clauses in DASA? - HELD THAT:- The first facility agreement is between the petitioner-the Financial Creditor and AOCL (a group company of the Corporate Debtor). On 21.12.2007 a Put Option Deed was executed between the Quicknet Telecom Private Limited and the Corporate Debtor (as the Put Option Provider) and AOCL. According to the terms of the agreement AOCL was granted the option to sell 103,600,000 of its ordinary shares in the capital of AOCL issued with a par value of INR 1 each to, Quicknet Telecom Private Limited and secondly the Corporate Debtor was required to place in Escrow with an Escrow Agent, the documents in relation to the property at 3, Bhagwan Das Road, New Delhi-110001. On the same date an Escrow Agreement was executed inter alia between the Corporate Debtor, the Financial Creditor and IDBI Trusteeship Services Limited, whereby IDBI Trusteeship Services Limited was appointed as an Escrow Agent for custody of the documents, pursuant to the Put Option Deed dated 21.12.2007 - It is worthwhile to notice that the Financial Creditor has advanced loan to one of its group company namely AOCL. However, it is a party to the Escrow Agreement executed between the Corporate Debtor and the IDBI Trusteeship Services Ltd. Whether in terms of the mechanism laid down under the Debt Asset Swap Agreement dated 20.12.2014, Undertaking dated 14.04.2015 executed by the Corporate Debtor in favour of the Financial Creditor and the amendment carried in Articles of Association of the Corporate Debtor with an undertaking to sell the property owned by the Corporate Debtor situated at 3, Bhagwan Das Road, New Delhi, the objection concerning privity of contract losses its significance? - HELD THAT:- The reading the Facility Agreement, the provisions of DASA dated 20.12.2014, the Undertaking dated 14.04.2015 along with the amendment carried by the Corporate Debtor in its Articles of Association no doubt is left that the Corporate Debtor has acknowledged the applicant-Financial Creditor as its Financial Creditor and therefore the terms of Loan Agreement in respect of the other group companies stand incorporated. The aforesaid conclusion emerges from reading of clause 5 and its sub clauses of DASA dated 20.12.2014, clause 2.1, 2.3 & 2.4 of the Undertaking dated 14.04.2015 and Article 34 (c) (i) of the Articles of Association. Thus, the petitioner satisfies the requirement of Section 5 (7) of the Code as it is a person to whom financial debt is owed or a person to whom such debt has been legally assigned or transferred. Financial Debt means a debt along with interest which has been disbursed against the consideration for the time value for money - The Limitation for the purposes of enforcing payment of money secured by a mortgage or otherwise charged upon immovable property is twelve years. In that regard Article 62 of the Schedule appended to the Limitation Act may be relied upon. Therefore, going by the provisions of the Limitation Act as made applicable by Section 238 (A) of the Code the petition is within the period of limitation. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. We are satisfied that a default amounting to crores of rupees has occurred within the meaning of Section 4 of the Code and the application under sub section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the application warrant admission as it is complete in all respects. Petition admitted - moratorium declared.
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