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TMI Blog2022 (6) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. It is stated that, Lepakshi Knowledge Hub Private Limited (Project Proponent) had entered into a Memorandum of Agreement with the Government of Andhra Pradesh on 22.12.2008 (MOA) for the purpose of setting up global knowledge hub. By way of this MOA, the Government of Andhra Pradesh agreed to allot and transfer required land to the Project Proponent. Further the Project Proponent incorporated two entities i.e., Lepakshi Science and Technology Park Private Limited (Borrower) and Lepakshi Heritage Wellness Village Private Limited (Corporate Debtor/Respondent) respectively. 3. On 19.03.2012 the Financial Creditor and the Borrower had executed an Inter Corporate Deposit ("ICD") agreement by which an amount of Rs. 5,00,00,000/- (Rupees Five Crores) was forwarded by the Financial Creditor to the Borrower, i.e., Lepakshi Science and Technology Park Private Limited. The ICD was executed in furtherance of Memorandum of Understanding dated 07.01.2012 that the Financial Creditor had entered into with Lepakshi Knowledge Hub Private Limited (Project Proponent). 4. It is stated that on 29.03.2012 the Corporate Debtor/Respondent/Guarantor had executed a corporate guarantee in favour of the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; xiii. Copy of the Financial Statements and other documents of the Corporate Debtor. 7. The Corporate Debtor/Respondent opposed the Company Petition on various grounds, inter alia, mainly contending as under: i. The instant petition is liable to be dismissed in limine as the Rs. 5 crore which forms the basis of instant proceedings is neither a financial debt in the first place as contemplated u/s. 7 of IBC nor the Petitioner is Financial Creditor as contemplated under IBC. No amount is owed to the Petitioner and as such these proceedings are fundamentally malicious. The Petitioner, on its own default backed out from the MOU and the order of performance contemplated in the transaction was dishonoured by the Petitioner. The bouquet of transaction contemplated in the MOU can never come under the ambit of financial debt and moreover as the transaction failed due to Petitioner's own non-performance there can never be any default and as such no money is owed to the Petitioner. ii. It is stated that the Petitioner's own balance sheets do not depict the 5 cr. as a debt, but as "Other investments (Group Companies)". Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the Respondent and have also perused the pleadings carefully including the Written Submissions filed and Judgments relied on by both sides. 9. It is not in dispute that the Respondent/Corporate Debtor executed a corporate guarantee in favour of the Financial Creditor/Petitioner guaranteeing repayment of the amount paid by the Financial Creditor/Petitioner to the Principal Borrower i.e., Lepakshi Science and Technology Park Private Limited. In C.P.(IB) No. 98/BB/2021 filed by the Financial Creditor/Petitioner against the Principal Borrower M/s. Lepakshi Science and Technology Park Private Limited, the Borrower has raised identical contentions and the said C.P.(IB) No. 98/BB/2021 is disposed of by this Adjudicating Authority by a separate order passed today, wherein identical contentions were answered as under: "14. The Hon'ble Supreme Court of India in M/s. Innoventive Industries Ltd. vs. ICICI Bank & Anr. in Civil Appeal Nos. 8337-8338 of 2017 observed as under: "27. The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 07.01.2012, on which the Respondent placed reliance was admittedly executed between the Petitioner and a separate legal entity known as M/s. Lepakshi Knowledge Hub Private Limited. Further, the amount received by the Respondent/Corporate Debtor under the subject Inter Corporate Deposit dated 19.03.2012 was not for purchasing of any shares by the Petitioner in the Respondent Company. On the other hand, it was for meeting certain expenses by the Respondent/Corporate Debtor. Hence, the contention of the Petitioner in this regard is rejected. The other contention with regard to the pending Arbitration proceedings etc., have no relevance in the application u/s. 7 of the IBC 2016. The contention of the Respondent/Corporate Debtor that the Petitioner/Financial Creditor in the Balance Sheets shown the subject amount as 'other investments' but not shown as Inter Corporate Deposit and hence the C.P. is liable to be dismissed, is invalid and unsustainable, since the execution and transfer of money under the Inter Corporate Deposit was not in dispute. 20. The Petitioner/Financial Creditor is able to prove the debt and default by placing reliance on various documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 12. The instant application filed in the prescribed Form No. 1 is found to be complete. 13. In the circumstances and for the aforesaid reasons and since the C.P. is complete, the same is admitted in terms of Section 7(5) of the IBC and accordingly, moratorium is declared in terms of Section 14 of the Code. As a necessary consequences of the moratorium in terms of Section 14, 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; (b) any court of law, tribunal, arbitration panel or other authority; (c) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; (d) 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; &n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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