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TMI Blog2019 (9) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s Aditya Estates Private Limited ('Corporate Debtor') on account of debt of US$ 63 million granted by ICICI Bank UK ('Financial Creditor') to one M/s Assam Oil Company Ltd', an overseas company. It was pleaded that in terms of 'Debt Asset Swap Agreement' dated 20th December, 2014, 'the Aditya Estates Private Limited' ('Corporate Debtor') defaulted to pay the debt. 2. The Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi by impugned order dated 26th February, 2019 admitted the application against which the present appeal has been preferred. 3. Learned counsel appearing on behalf of the appellant (Shareholder of 'Corporate Debtor') submitted that 'ICICI Bank UK PLC' was claimed to be the 'Financial Creditor' has given a loan to M/s Assam Oil Company Limited, which is an overseas company, for which no guarantee has been given by M/s Aditya Estates Pvt Ltd ('Corporate Debtor') nor any property has been mortgaged or charge has been created. Therefore, 'ICICI Bank UK PLC' cannot claim to be the 'Financial Creditor' of M/s Aditya Estates Private Limited ('Corporate Debtor' ). 4. It was submitted that pursuant to separate agreement 'ICICI Bank Ltd, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor') is a party to the 'Indian Facility Agreement' dated 17th November, 2014. Though the 'Corporate Debtor' did execute a 'Corporate Guarantee' and mortgaged its property but only limited to the Indian Facility/loan granted by ICICI Bank Ltd (India) to Duncan. Further, under 'Debt Asset Swap Agreement' dated 20th December, 2014, 'lender' has been defined as 'ICICI Bank Ltd (India)' only. The 'Indian Facility Agreement' dated 17th November, 2014 was entered into between ICICI Bank Ltd (India) and Duncan. The only connection which 'M/s Aditya Estates Pvt Ltd' had with the said Indian Facility, as a security to the Loan given to Duncan, had mortgaged its property in favour of ICICI Bank (India) under the loan facility. It is further stated that the 'Corporate Debtor' had already discharged its liability under the 'Indian Facility' and redeemed the property in terms of the order dated 23rd July, 2018 passed by the Debt Recovery Tribunal. In view of such discharge of liability under the 'Indian Facility' and redemption of the property of the 'Corporate Debtor', there is no question of the sale of property now. 8. It is brought to our notice that on an appeal filed by ICICI Bank (Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C cannot place reliance on the Articles of Association of the 'Corporate Debtor' to claim itself as a 'Financial Creditor', but such submission is not supported by any reasoning. 14. Learned counsel for the appellant also submitted that the claim is barred by limitation as ICICI Bank UK PLC had given loan and the principal borrower 'M/s Assam Oil Company Ltd' has defaulted on 28th December, 2011. 15. Learned counsel appearing on behalf of 1st respondent ICICI Bank UK PLC Ltd submitted that the 1st Respondent granted a loan of US$ 63 million to 'M/s Assam Oil Company Ltd', a UK based company under a 'Facility Agreement' dated 21st December, 2007. Simultaneously, 'M/s Aditya Estates Pvt Ltd', executed a 'Non Disposal Agreement' dated 21st December, 2007 in respect of its property situated at 3, Bhagwan Das Road, New Delhi wherein it specifically undertook that the property of 'Corporate Debtor' shall not be disposed off until the ICICI Bank UK PLC is paid its full and final dues to the satisfaction of ICICI Bank UK PLC. Further, by way of an 'Escrow Agreement', the title deeds of the property of 'Corporate Debtor' were deposited by 'Corporate Debtor' with 'IDBI Trusteeship Services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Facility and ICICI Bank UK Facility the Corporate Debtor executed 'Debt Asset Swap Agreement' dated 20th December, 2014 whereby 'Corporate Debtor' has agreed to repay the ICICI Bank Indian Facility and ICICI Bank UK Facility in terms of Clause 5 of 'Debt Asset Swap Agreement' or to sell the Property at a reserve price of at least the aggregate of the outstanding amounts under the ICICI Bank India and ICICI Bank UK PLC and utilise the proceeds of sale for repayment of the ICICI Bank Indian Facility and ICICI Bank UK Facility. 19. For proper appreciation it is desirable to quote Clause 5.1, 5.2 and 5.4 of 'Debt Asset Swap Agreement' which are as under:- "5. SALE PROCESS 5.1 Upon the occurrence of an Event of Default under the Facility, the Lender shall issue a notice to all the Obligors to make payment for discharge of their obligations within 7 days of the notice. 5.2 On non-payment of the dues in full to the satisfaction of the Lender within 7 days of the Demand Notice issued under Clause 5.1, the Lender shall provide a notice to the Owner requesting to sell the immovable Property within (45) days of the Demand Notice or to clear(i) the outstanding amounts under the Fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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