Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2019 (4) TMI 1751

..... d payable by the Corporate Debtor - HELD THAT:- All requirements of Section 7 of the Code for initiation of Corporate Insolvency Resolution Process by a Financial Creditor stand fulfilled. In that regard, the application is complete as per the requirements of Section 7 (2) of the Code and other conditions prescribed by Rule 4 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. There is overwhelming evidence to prove default and name of the resolution professional has also been clearly specified. 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. - (IB)-854/(PB)/2018 - 30-4-2019 .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... he Code. 5. Brief facts of the case necessary for disposal of the controversy raised in this application are that the Corporate Debtor, approached the Financial Creditor for availing a loan for a sum of ₹ 2,00,00,000/- (Rupees Two Crore Only) to make payments to one Galleria Property Management Services Pvt. Ltd. for purchase of a shop/office situated at 2nd Floor, DT City Centre, Block A , Shalimar Bagh, New Delhi-110088 in pursuance of the retail/commercial space buyer s agreement dated 17.03.2006. As per the request of the Corporate Debtor, the Financial Creditor sanctioned the loan facility for the aforesaid amount vide sanction letter dated 31.05.2008 and consequent upon acceptance of the offer of the aforesaid loan, an agreement dated 31.05.2008 was executed between the parties. The Financial Creditor had disbursed entire loan amount of ₹ 2,00,00,000/- (Rupees Two Crore Only) on 31.05.2008. 6. As per the aforesaid loan agreement, loan facility was sanctioned for tenure of 10 years and the interest was payable @ 15.75% per annum minus margin (being -0.25% per annum) aggregating @ 15.50% per annum, applicable at that point of time. However, the interest was variable .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ounsel for the Corporate Debtor has opposed the admission of the petition and has advanced the following arguments :- 1. The petitioner has suppressed material facts and made deliberate mistatements, in particular with respect to the outstanding dues and rate of interest charged by the petitioner w.e.f. 01.10.2010 despite having agreed to reduce the rate of interest from 16.50% to 12% upon payment of premium of ₹ 3,13,795.00 w.e.f. 01.09.2010. In this regard reliance has been placed on a letter dated 16.07.2010 (Annexure R-2) with a subject Restructuring of loan A/c No. HLAPKBA00038651 wrote by the respondent to the petitioner. 2. The Respondent has issued numbers letters/reminders to the petitioner for reconciliation of the account giving effect to the access amount charged by the petitioner by charging excessive interest than agreed but the petitioner has not corrected its own mistakes despite giving assurance at various occasions. 3. The petitioner, however, did not reconcile its accounts and instead of reconciling the account, initiated action u/s. 13 (2) of the SARFAESI Act vide notice dated 22.08.2017. 4. The Respondent has also challenged the action of the petitioner b .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ng Reference Rate : 12 % per annum as on the date of execution of this agreement (b) Adjustable Rate of Interest : IFSL Floating Reference Rate 14 +/- 2 Rest of the terms and conditions will be according to the schedule to the Principal Loan Agreement. A close glance on the contents of the amendatory agreement it is patent that the respondent approached the petitioner regarding change in the rate of interest and alike adjust the tenure/tenor of repayment of the loan amount. As per the schedule on the date of execution of the amendatory agreement the remaining loan amount was to be ₹ 18966123.95 which was agreed to be paid in the tenure of 180 months. In the said agreement it is clearly mentioned that the rate of interest would be floating in nature which on the date of execution of the agreement was 12%. The veracity and sanctity of the said agreement cannot be doubted that too in the teeth of when seal and signature of the are Respondent affixed on the said agreement. Further the Respondent has not disputed the said agreement. Thus, since the said agreement specifically states that the rate of interest agreed between the parties was floating in nature then the Respondent can .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ncial creditor of the Corporate Debtor. There appears to be no infirmity in the application form, being complete in all respect. 19. It is also the case of the respondent that the account of the Corporate Debtor has been wrongly declared as NPA. While dealing with application under Section 7 of the Code, it is immaterial to see as to when the account was declared as NPA. In Section 7 application, it is only to be considered as to whether there is a debt due in law and facts and whether there has been a default in paying the financial debt. 20. Hon ble National Company Law Appellate Tribunal in the case of Ranjit Kapoor v. Asset Reconstruction Company (India) Ltd. in [Company Appeal (AT) (Insolvency) No. 410 of 2018 dated 30-10-2018] has held that the provision of NPA relates to SARFAESI Act, 2002 and has nothing to do with Code . Therefore, the objection of the Respondent that the Financial Creditor has wrongly declared the account as NPA, cannot be a ground to reject the application preferred by Financial Creditor under Section 7 of the Code, there being default in payment of financial debt. 21. It is thus patent that all requirements of Section 7 of the Code for initiation of Cor .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ency Resolution Professional to make public announcement immediately with regard to admission of this application under Section 7 of the Code. The expression immediately means within three days as clarified by Explanation to Regulation 6 (1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 26. We also declare moratorium in terms of Section 14 of the Code. A necessary consequence of the moratorium flows from the provisions of Section 14 (1) (a), (b), (c) & (d) and thus the following prohibitions are imposed which must be followed by all and sundry: (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforceme .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||