TMI Blog2018 (6) TMI 1763X X X X Extracts X X X X X X X X Extracts X X X X ..... The Corporate Debtor has also accepted that Arbitral Award is in existence and also accepted its inability to pay its debts. The Petition as the Applicant has made out a case and the petition is admitted and it is also satisfied that the Adjudicating Authority in admitting the Petitions. It is also proved that there is a debt due payable by the Corporate Debtor/Respondent 1 and both the Corporate Debtor (R-1) and Corporate Guarantor/Respondent 2 have defaulted in making the payments. Petition admitted - moratorium declared. - CP/709/(IB)/CB/2018, CP/ 710/ (IB)/CB/2018 - - - Dated:- 22-6-2018 - K. ANANTHA PADMANABHA SWAMY AND S. VIJAYARAGHAVAN, JJ. For the Petitioner: Shri. Bipin Shukla, Advocate Smt. Harshini Jhothiraman, Advocate For the Respondent: Shri. Avinash Krishnan Ravi, Advocate ORDER K. ANANTHA PADMANABHA SWAMY, J. 1. Under consideration is a Company petition filed by Smt. K. Bharathi (in short Financial Creditor/Applicant) against M/s. Green Gardens Private Limited (in short Corporate Debtor/Respondent 1) in CP 709/(IB)/CB/2018 and the Corporate Guarantor M/S. Gemini Arts Private Limited(Respondent 2)in CP 710/(IB)/CB/2018 under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondents. The understanding between the petitioner and the respondents was that in case the respondents are unable to repay the loan taken from M/s.India Bulls Financial Services and in case they take recourse to selling the shares pledged with them by the petitioners then in such a case the amount so realised by M/s.India Bulls towards the extinguishment of the loan will be considered as a financial credit extended by the petitioner to the respondents. The period of repayment with regard to loan agreement entered into between the respondents and M/s.India Financial Services was for a period of 365 days. In order to secure the interest of the petitioner, the Ist respondent and 2 4 respondent, as a guarantor, agreed to create a second charge of the immovable properties in favour of the Claimant. The said properties were also offered as a security to M/s.India Bulls Financial Services Limited for obtaining financial credit by creating a first charge. Respondents also agreed to deposit original title deeds of their immovable properties with the ~ Claimant as soon as the same was released by India Bulls. Respondents also agreed to register the Memorandum of Deposit with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guarantor for the amount in terms of Clause 9 of the Loan Agreement dated 19.06.2009. In compliance to the loan agreement, the 2nd respondent deposited original title deeds of the immoveable property along with the Memorandum of Agreement dated 15.04.2016 for the purpose of creating equitable mortgage of that property. Subsequent to this, the 1st respondent and 2 nd respondent have been avoiding the registration of the memorandum even though they had deposited the original title deeds with the petitioner. In terms of Class-II of Memorandum of Deposit dated 01.04.2015, the 1% respondent admitted the liability as ₹ 213,67,28,324/- (Rupees Two Hundred Thirteen crores Sixty Seven lakhs Twenty Eight thousand Three hundred and Twenty Four only) including the unpaid interest portion on the principal amount of ₹ 84,79,08,065/- (Rupees Eighty Four crores Seventy Nine lakhs Eight thousand Sixty five only) together with 24% interest as-agreed upon. 9. The Learned Sole Arbitrator had directed the Corporate Debtor to register the Memorandum of Deposit in favour of the Financial Creditor and to complete the mortgage of immoveable properties in favour of the Financial Creditor. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to India Bulls for the loans availed by the Corporate Debtor. As per the agreement between the Financial Creditor and the Corporate Debtor and the Corporate Guarantor, the amount realized by India Bulls and on the sale of shares came to be treated as loan by the Financial Creditor in the books of account of the Corporate Debtor. It was also an admitted fact that M/s. Gemini Arts Private Limited should become the guarantor for the loan availed by the Corporate Debtor. It is also an admitted fact that the Corporate Debtor failed to repay the loan amount as per the agreements entered into between the Financial Creditor and the Corporate Debtor. The Corporate Debtor in turn admitted that it has no financial wherewithal to pay off the liabilities. The Corporate Debtor has also accepted that Arbitral Award is in existence and also accepted its inability to pay its debts. 13.In view of our above observations, we are inclined to admit the Petition as the Applicant has made out a case and also satisfied the Adjudicating Authority in admitting the Petitions. It is also proved that there is a debt due payable by the Corporate Debtor/Respondent 1 and both the Corporate Debtor (R-1) and Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their 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 and the Corporate Guarantor in respect of their property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002). (d) The recoveo.' of any property by the owner or lessor where such properties occupied by or in the possession of the Corporate Debtor/Corporate Guarantor. 18.The supply of essential goods or services of the Corporate Debtor/ Corporate Guarantor shall not be terrninated or suspended or interrupted during the moratorium period. The provisions of Sub Section (1) of Section 14 shall not apply to such transactions, as notified by the Central Government. 19. The IRP shall comply with the provisions of Sections 13(2), 15, 17 18 of the Code. The Directors, Promoters or any other person associated with the management of the Corporate Debtor/Corporate Guarantor are directed to extend all assistance and cooperation to the IRP as stipulated under Section 19 and for discharging his functions under Section 20 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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