Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2021 (1) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (1) TMI 1157 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - loan were provided to Corporate Debtor along with Doshi Holdings Pvt. Ltd. (Doshi) as Co-borrower under three different Loan-cum-Pledge Agreements with the subsequent addendums - Financial Creditors - invocation of pledged shares, amounts to recovery of amounts or not - two separate Applications can be filed simultaneously under Section 7 or not - HELD THAT:- Since the “debt” and “default” is admitted by the Corporate Debtor, the Bench would examine the admissibility of the Petition based on the outcome regarding the two issues mentioned by the Corporate Debtor, i.e., Premier Limited against the Petitioner. This Bench notes that invocation of pledged shares does not amount to said monies recovered - it is clear that it is a step which has to be followed with the enforcement of security whereby the shares are transferred into the Pledgee’s account. Only after this, the Pledgee, i.e., in this case the Petitioner, would be in a position to choose to sell or to hold on to the shares as per its discretion. Therefore, this Bench finds that the contention of the Corporate Debtor that since the Pledge was invoked on 02.07.2020, it amounts to the value of debt being reduced to the extent of the existing price of the shares in the stock markets on 02.07.2020 which is about ₹ 2.06 crores in this case as not tenable. It is entirely at the discretion of Pledgee which is the Petitioner to sell the shares in case the Pledger makes the default. However, in the event the pledgee does not exercise the discretion, no blame can be put on the pledgee. It is therefore clear that the Pledgee has the discretion to decide if he wants to sell the pledged security, when to sell it and how much to sell it. The Pledger cannot dictate terms to the Pledgee on how to exercise his right. Two separate Applications can be filed simultaneously under Section 7 or not - HELD THAT:- As per the Judgment of Piramal, [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] two separate Applications can be filed simultaneously under Section 7 against Premier Limited as well as Doshi Holdings Private Limited who is Coborrower. However, under Section 7, if the claim against Premier Limited (Corporate debtor herein) is “Admitted” then for the same set of loans, arising under the same loan documents, the same debt/ claim against Doshi will not be permissible in terms of the NCLAT Judgment of Dr. Vishnu Kumar Agarwal Vs. Piramal Enterprises Limited [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI]. This Bench, on perusal of the documents filed by the Financial Creditor, is of the view that the Corporate Debtor defaulted in repaying the loan availed. The existence of debt and default is reasonably established by the Petitioner as a major constituent for admission of a Petition under Section 7 of the Code. Therefore, the Petition under sub-section (2) of Section 7 is taken as complete - Petition admitted - moratorium declared.
|