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2021 (11) TMI 840 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - event of default - execution of debenture trust deed-cum-indenture of mortgage - HELD THAT:- The terms and conditions or the debenture trust deed-cum-indenture of mortgage, evidences the fact that the corporate debtor in view of the raising finance for the purposes of purchasing FSI, undertaking construction activities, creation and maintenance interest service deserve, meeting issue expenses and another general corporate purposes have issued correct placement of fully secured creditor and unlisted fully transferable non-convertible debentures having face value of ₹ 10 lakhs into two series after grant substitution amount of ₹ 25 crores. It was envisaged under the debenture trust deed-cum-indenture of mortgage that by way of private placement of a letter the issuer has offered for issuance by way of private placement of debentures. It is clear that the English mortgage is created in favour of the debenture trustee for the benefit of debenture holders and therefore, the title, ownership possession, interest, benefits, claim and demand including and lease hold rights or for the mortgaged units were transferred to the debenture trustee absolutely - in terms of the debenture trustee-cum-mortgage deed, it is clear that the title of the mortgaged properties is transferred to the debenture trustee absolutely and upon the satisfaction of the secured obligations the debenture trustee shall reconvey that the property to the corporate debtor the clause of reconveyance. Upon perusal of the debenture trustee deed-cum-indenture of mortgage dated January 10, 2018 it is clear that the events of defaults envisage the realization of security upon happening events of defaults as a mechanism defined under the agreement in the particular manner, wherein he has power to sale the property, upon to receiver and make application to the court permanent receiver under clause 32. It also envisages a provision at clause 35.5, wherein it is agreed between the parties that the debenture holders and debenture trustee can take properties without intervention of court - in terms of the English mortgage, the mortgagor has a recourse to repay the mortgaged debt and has the right to seek reconveyance of the properties to the mortgagor upon complete satisfaction of debt. The petitioner has absolute rights in the mortgaged property and cannot initiate any action under section 7 upon non-payment of dues under the debenture trust deed, the petitioner has agreed to recourse and sell the mortgaged assets and recover the money due - this Bench conclude upon non-payment dues under the debenture trust deed, there is no default and the petitioner has agreed to recourse as envisaged under registered debenture trust deed-cum-mortgage. Petition dismissed.
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