TMI Blog2021 (8) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... able by the Corporate Debtor to the Financial Creditor. Under the said circumstances, this Tribunal is left with no other option but to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor. This Application filed by the Financial Creditor is required to be admitted under Section 7(5) of the IBC, 2016 - The application is admitted - moratorium declared. - IBA/149/2020 - - - Dated:- 12-8-2021 - Sucharitha R., Member (J) And Anil Kumar B., Member (T) For the Appellant : J.R. Jayant, Advocate For the Respondents : A.S. Sathish Kumar, PCS ORDER Sucharitha R., Member (J) 1. Under Adjudication is an Application that has been filed by M/s. Nippon Life India AIF Management Limited (hereinafter referred to as 'Financial Creditor ) under Section 7 of the Insolvency Bankruptcy Code 2016 (in short, 'I B Code, 2016') r/w Rule 4 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against M/s. Green Valley's Shelters Private Limited (hereinafter referred to as 'Corporate Debtor'). The prayer made is to admit the Application, to initiate the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receivables from the Project properties effective from the date of execution of Transaction Documents in favour of the Applicants. c) Corporate Guarantee issued by the Corporate Debtor and Arkie Atelier Design India Private Limited. d) Personal Guarantee issued by the promoters of the Corporate Debtor. e) Demand promissory note issued for the face value of NCDs along with coupon. f) Purchase Option Agreement with respect to the mortgaged properties. g) Any other security interest created in favour of the Debenture Holders under the Transaction Documents. 5. The Learned Counsel for the Financial Creditor submitted that the Applicants in the capacity as a Trustee, pursuant to the execution of a Mortgage Cum Trust Deed invested a sum of ₹ 31,75,00,000/- by subscribing to by way of private placement, senior, secured, unrated, unlisted, fully redeemable, non-convertible debentures (NCDs) in multiple tranches. It was also submitted that the Financial Creditor have subscribed to a total of 3,175 NCDs having face value of ₹ 1,00,000/- each. 6. It was submitted that the Financial Creditor No. 1 has invested in NCDs in five tranches totalling to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occurrence of the Event of Default as defined in the Transaction documents, the Corporate Debtor is liable to pay interest of 2% over and above the IRR of 20.75% or coupon of 19% p.a. 10. The Learned Counsel for the Financial Creditor submitted that the Corporate Debtor has violated several terms and conditions of the Transaction Documents and has committed material breaches of its obligations, covenants, representations, warranties and undertakings under the Transaction Documents resulting in huge outstanding. Further, it was submitted that the Financial Creditor made several request and sent reminders to the Corporate Debtor for the repayment of the amount dues, however the Corporate Debtor has till date failed to make any payment towards the outstanding amount. It was submitted that the initial defaults in repayment of the outstanding amounts arouse on 30.09.2018 and 31.12.2018 and hence the Applicant issued two separate notices dated 07.01.2019 informing the Corporate Debtor that the event of default has occurred and demands for the payment of the outstanding amount by 15.01.2019. However, it was submitted that the Corporate Debtor continued to be in default despite the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial effect of a borrowing; and (ii) the expressions, allottee and real estate project shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016); (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clause (a) to (h) of this clause; 13. The Corporate Debtor has not disputed the fact that the Financial Creditor has invested in the Corporate Debtor in the form of Non-convertible Debentures (NCDs) in multiple tranches to the tune of ₹ 31,75,00,000/-. Further, the amount raised pursuant to the debentures would qualify to be a financial debt' as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r authority; b. Transferring, encumbering, alienating or disposing of by the respondent 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 respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. Explanation.-For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a licence, permit, registration, quota, concession, clearance or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license or a similar grant or r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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