9911796707
TMI Blog2020 (1) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... 0PLC211087 has filed this petition through its authorised person named Ms. Pooja Gaonkar, Head, Legal & Company Secretary, against the Corporate Debtor who is a Limited Liability Partnership incorporated on 12/06/2013 and bearing identification number: AAB-5796. 3. The counsel appearing on behalf of the petitioner submitted that a total amount of Rs. 20,00,00,000/- (Rupees Twenty Crores) was disbursed by them in favour of one company named Playtor Lifespaces Private Limited the Corporate Debtor on 30/03/2015 under Debenture Subscription Agreement dated 27/03/2015 whereunder the petitioner had subscribed to 2000 secured, unrated, unlisted, non-convertible debentures to the Corporate Debtor having face value of Rs. 1,00,000/- aggregating to a sum of Rs. 20,00,00,000/-. 4. The tenure mentioned under this Debenture Subscription agreement was for 42 months from the closing date i.e. 30/03/2015. This tenure was to expire on 29/09/2018. The company was obligated to repay the subscription amount of Rs. 20,00,00,000/- after a moratorium period of 8 quarters. The repayment of the subscription amount was to be made in 6 quarterly instalments as set out in clause VII of Annexure 3 of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice issued to the Corporate Debtor viii. Copy of the RPAD acknowledgment receipts ix. Copy of the e-mail correspondence x. Copies of the account statement of the Financial Creditor held with its Bank xi. Copy of the Particulars of Claim xii. Copy of the Master data of the Financial Creditor and Corporate Debtor 11. On the contrary, the counsel for the Corporate Debtor has denied all the statements, contentions and allegations made by the petitioner in toto stating that this petition deserves to be dismissed on the ground that it is entirely misconceived in fact, bad in law and not maintainable under Section 7 of the Code. 12. Further, the counsel for the Corporate Debtor submitted that he is falsely implicated by the petitioner and is not entitled to pay the claimed amounts to be in default as per the Debenture Subscription Agreement dated 27/03/2015 and the amount disbursed was towards investment and not loan. 13. The Corporate Debtor further replied that the petitioner mentioned about an amount of Rs. 20,00,00,000/- which was sanctioned through the Debenture Subscription Agreement out of which Rs. 14,26,06,537/- has already been paid but the total amount claimed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought before a person authorised to receive evidence or holding a public office, such person is required to impound the instrument. The Corporate Debtor contended that the said instrument referred to in this petition are to be impounded under the Maharashtra Stamp Act, 1958. 17. The Corporate Debtor further submitted that there is no default as the Petition clearly states that principal moratorium period is of 8 quarters which is still available as even the redemption of debentures provides for redemption up to 30/09/2018, however the tenure period was expiring on 29/09/2018 and the company was obligated to repay after the principal moratorium period of 8 quarters which is still available. 18. The Corporate Debtor further stated that the Debenture Subscription Agreement as well as the petition clearly provides for the applicability of Internal Rate of Return ("IRR"), a metric system used in capital budgeting to estimate the profitability of potential investments. The Corporate Debtor stated further that there is no financial debt as the DSA, clause 18.4 provides that in the event of default committed by the Company, the petitioner be entitled to an amount equivalent to the subscr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Debenture Subscription Agreement that was entered into both the parties which cannot be called to be a loan but is merely an investment, does not stand. Also, reliance can to be placed on the judgment of the Hon'ble Supreme Court of India in M/s. Innovative Industries Limited vs. ICICI Bank and another wherein it was held as follows:- "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 other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is no matter that the debt is disputed so long as the debt is "due" i.e., payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise." 24. Therefore, it is very clear that the Debenture Subscription Agreement is as good as a Loan Agreement and hence in the present matter, the Corporate Debtor is bound to pay the dues to the petitioner and cannot run away from his liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Stamp Duty is not duly paid on the Deed of Guarantee and hence, the same cannot be relied upon and also that the Deed of Guarantee was not executed in Maharashtra and should have been stamped within three months after it has been first received in this State for which the Corporate Debtor relied upon the recent judgment of the Hon'ble Supreme Court of India in the matter of Garware Walls Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd. was relied, wherein the Court reversed the judgment of the Bombay High Court and reiterated the principles laid down by it in the matter of SMS Tea v. Chandmari Tea Estate and held that "an arbitration clause is an instrument, which is not stamped as per law, cannot be given effect if and until the instrument is duly stamped i.e. full stamp duty in respect of such instrument as provided by law has been paid. If an unstamped instrument is brought before a person authorised to receive evidence or holding a public office, such person is required to impound the instrument." Here, in this present matter, it is pertinent to note that the Deed of Guarantee was executed at New Delhi and sufficient stamp duty of Rs. 400/- has been paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that the Corporate Debtor defaulted in repaying the loan availed. In the light of above facts and circumstances, the existence of debt and default is reasonably established by the Financial Creditor as a major constituent for admission of a petition under section 7 of the I&B Code. Therefore, the Application under sub-section (2) of Section 7 is taken as complete, accordingly this Bench hereby admits this Petition prohibiting all of the following of item-I, namely: (I) (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 Enforcement of Security Interest Act, 2002 (SARFAESI Act); (d) the recovery of any property by an owner or lessor wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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