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2020 (1) TMI 1235 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of dues of petitioner - existence of debt and dispute or not - correct computation or not - privity of contract - stamp duty not paid - default in the petition - HELD THAT:- There is a default on the part of the Corporate Debtor in making the payment towards the liability to the Petitioner. Despite repeated requests and reminders in the form of notices, the Corporate Debtor failed to repay the dues - the contention made by the Corporate Debtor that they are not bound to repay the amount because it was the Debenture Subscription Agreement that was entered into both the parties which cannot be called to be a loan but is merely an investment, does not stand - It is very clear that the Debenture Subscription Agreement is as good as a Loan Agreement and hence in the present matter, the Corporate Debtor is bound to pay the dues to the petitioner and cannot run away from his liability. Secondly, the documents submitted by the petitioner are enough to establish the debt as well as the default on the part of the Corporate Debtor. Computation of the amount, correct or not - HELD THAT:- The amount due under the agreement were secured by the Corporate Debtor by way of Deed of Guarantee which is also admitted by them. The amount of ₹ 41,25,10,306/- which is claimed to be in default by the petitioner includes the outstanding principle amount, interest as per IRR and penal interest as per the particulars of claim which is annexed as Annexure K of the copy of petition. Absence of privity of contract - HELD THAT:- This contention does not stand because clause 18.2.1 of the Debenture Subscription Agreement clearly entitles the petitioner to exercise rights upon the occurrence of an event of default, being, inter alia, accelerating the redemption of the debentures, enforcing the security documents. Consent from such debenture holders not taken - HELD THAT:- After reading the Board Resolution annexed by the petitioner at Annexure A of the copy of petition, it is observed that it does contain and clearly mentions to institute an insolvency petition and therefore, there is no scope for any ambiguity in relation thereto. Whether the Stamp Duty is not duly paid on the Deed of Guarantee? - HELD THAT:- According to Section 29 of The Indian Stamp Act, 1899 wherein it is mentioned that it is for the one executing the instrument to pay the stamp duty, and here, in this matter, it was the Corporate Debtor who was to pay the Stamp Duty because he had executed the said Deed of Guarantee which is in question before this Bench - It is also observed that the Corporate Debtor on one hand relies on the said Deed of Guarantee and on the other hand denies its evidentiary value and therefore, this contention raised has no credibility and therefore cannot be relied upon. Default in the petition or not - HELD THAT:- After going through the documents it is observed that the date 30/09/2018 was the date of redemption for the repayment of the last 20% of the principle amount and not the date of which the Corporate Debtor could repay the entire amounts due under the Debenture Subscription Agreement and therefore, there was no moratorium time available to repay the debt as the entire moratorium period got expired on 31/03/2017.fter going through the documents it is observed that the date 30/09/2018 was the date of redemption for the repayment of the last 20% of the principle amount and not the date of which the Corporate Debtor could repay the entire amounts due under the Debenture Subscription Agreement and therefore, there was no moratorium time available to repay the debt as the entire moratorium period got expired on 31/03/2017. All the contentions of the Corporate Debtor do not stand because of the abovementioned reasons and due to the existence of debt and default being made on the part of the Corporate Debtor in making the payment to the petitioner. The amount in default is well above the minimum required amount of ₹ 1 Lakh. Thus, it is to be noted that this petition fulfils all the requisite conditions to admit a petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 and therefore, the petition deserves to be admitted - on perusal of the documents filed by the Creditor, is of the view that the Corporate Debtor defaulted in repaying the loan availed. Application admitted - moratorium declared.
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