TMI Blog2019 (1) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... amani, Adv. Nikhil Kapoor i/b The Law Point. ORDER Per: Bhaskara Pantula Mohan, Member (J) 1. Indiabulls Housing Finance Limited (hereinafter called Petitioner ) has sought the Corporate Insolvency Resolution Process of Hanumesh Realtors Private Limited (hereinafter called the Corporate Debtor ) on the ground, that the Corporate Debtor committed default on 24.10.2017 to the extent of ₹ 92,64,45,369/- along with pending TDS for an amount of ₹ 9,04,999/-, under Section 7 of Insolvency and Bankruptcy Code, 2016 (hereafter called the Code ) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The Petition states that the Petitioner sanctioned a loan in favour of the Corporate Debtor for ₹ 60,00,00,000/- on 30.09.2013 vide a Loan Agreement dated 30.09.2013 and an Addendum Agreement dated 1.10.2013. The said Loan Agreement carries an interest of 18.10% p.a. repayable within 60 months from the date of disbursement. The Corporate Debtor was irregular in making repayments and committed a breach in making payment towards the EMI with respect to the aforesaid Loan facility. No EMI with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with future interest @ 18.10% p,a with effect from 13.12.2017 plus pending TDS of an amount of ₹ 9,04,999/-. 8. On 14.02.2018, the Advocates of the Corporate Debtor replied to the Petitioner s SARFAESI notice raising inter alia the following contentions: a) Their client, Mr. Vikas Kasliwal had requested the management of the Petitioner for settlement of the loan account of the Corporate Debtor as several investors were interested in investing in the Palais Royale project undertaken by SRUIL. Further, no action under SARFAESI would be maintainable as the Hon ble Supreme Court has time and again held that no proceedings would be maintainable under the SARFAESI Act, 2002 if the borrower is willing to settle the outstanding dues. b) That the Petitioner had advanced loans to the Corporate Debtor and its sister concerns at various instances and these were shown as housing loans. When the Corporate Debtor and its sister concerns got embroiled in various legal disputes, further loans were disbursed by the Petitioner in instalments so that the Corporate Debtor and its group companies could pay/ repay the interest on the original loan and the loans accounts to the group co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial debt to include money borrowed against the payment of interest. There is clearly a loan given of ₹ 60,00,00,000/- on 30.09.2013 vide a Loan Agreement dated 30.09.2013 and an Addendum Agreement dated 1.10.2013. The said Loan Agreement carries an interest of 18.10% p.a. Therefore it is a financial debt and the Petitioner is a Financial Creditor. (b) That the project ran into legal difficulties on account of a PIL initiated by NGO called Janhit Manch and the same is pending before the Supreme Court. As a result, SRUIL was unable to obtain the Occupation Certificate for the building. However, these proceedings are not relevant for admission of a Section 7 petition wherein debt and default is established. (c) The MOU dated 24.09.2015 was entered into between SRUIL and Adhita Realty Pvt. Ltd. (a company run by Mr. Avinash Bhosale who was a close associate of the Petitioner.) and it was agreed that as compensation for services rendered, Mr. Bhosale would receive flats from SRUIL at a very reasonable price etc. This Bench has given serious consideration to this argument but the MOU dated 24.09.2015 and it was not mentioned there about the loan advanced by to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Code and therefore the Petition filed u/s 7 is not maintainable. The abovesaid contention is bereft of any merit and it is clear on record that the Financial Creditor had advanced monies and the Corporate Debtor is liable to pay. Beyond that there is nothing to see as far as a petition under Section 7 of this Code is concerned. (h) In addition to what is stated above, several other arguments were raised by the Corporate Debtor in its written submissions which this bench feels are of no relevance. 13.The Petitioner in its written submissions responded to the above arguments of the Corporate Debtor as follows: a) Once debt due is established under Section 7 of the Code then any defence which challenges the exact amount in default is irrelevant and extraneous. In this regard, para 30 of the decision of the Hon ble Supreme Court in Innoventive Industries Ltd v. ICICI Bank and Ors., AIR 2017 SC 4084 was relied upon by the Petitioner, which is reproduced as follows: On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied on the strength of further material that the company may produce. The company is afforded a chance on the post-advertisement stage to use a second affidavit to the same petition for winding up. However, inasmuch as there is only an Order of admission which is passed at the first stage, the exercise of discretion as to whether the company should be wound up notwithstanding its palpable indebtedness, is left for the second stage. 15. The Petitioner argued that it will be in a position to return the pledged debentures upon repayment of the debt by the Corporate Debtor. Just because of the fact that there is a winding up petition admitted against the Petitioner, that does not extinguish the debentures of SRUIL. Further, Clause 16.2 of the Debenture Pledge Agreement states as follows: Without limiting Clause 16.1, neither the liability of any pledgor(s) nor the Confirming Party nor the validity or enforceability of this Agreement shall be prejudiced, affected or discharged by: (f) The insolvency or liquidation or any incapacity, disability or limitation or any change in the constitution or status of any of the Pledgor(s) or the Confirming Party, as the case may be other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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