9911796707
TMI Blog2022 (10) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 26,96,49,413/-which includes: a. Rs.18,00,00,000/- being the redemption of 18 fully paid up unrated, unlisted, Secured, Redeemable, Non- Convertible Debentures issued by the Respondent; b. Rs. 3,64,31,833/- being the Redemption Premium accrued; c. Rs.64,71,708/- being the Penal Interest; d. Rs.4,67,45,872/- being the Interest. 2. The Petitioner enclosed the following documents, that records and evidence of default, categorically demonstrating the financial debt "due" and "payable" by the Corporate Debtor to the Petition: i. Debenture Trust Deed dated 17.03.2018, executed between the Debenture Trustee and the Respondent; ii. Supplemental Debenture Trust Deed, dated 19.03.2018, executed between Debenture Trustee and the Respondent; iii. Pledge Agreement dated 19.03.2018, between Mr. Priyal Kantilal Patel (Pledgor One); Ratik Harish Patel (Pledgor Two); Respondent and Vistra ITCL (India) Limited (Debenture Trustee) iv. Promissory Note issued by the Respondent in favor of Debenture Trustee dated 19.03.2018; v. Consent Terms dated 14.10.2020 entered between Respondent and the Petitioner; vi. Bank Statement of the Petitioner; Brief Facts: 3. The Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent issued post-dated cheques on 31.07.2021, 31.08.2021 and 30.09.2021, the same were returned as "dishonored", thereby breaching the Consent Terms. 7. The Petitioner addressed a notice dated 28.09.2021, to the Respondent and the Debenture Trustee, informing occurrence of default, in the obligations, under the Consent Terms wherein the Petitioner will be entitled to claim the entire amounts due and payable under the DTD and the Transaction Documents. The Debenture Trustee vide email dated 01.10.2021 acknowledged the event of default and advised the Petitioner to take appropriate legal action. Reply Filed by the Corporate Debtor 8. The Respondent Company in its reply denied each and every averments, allegation and/or contention contained in the present Petition. 9. The Respondent submitted that, the Petitioner is not the only holder of NCDs under the DTD. In fact, the Petitioner holds only 11% of the total NCDs by value. Evidently, the Petitioner represents a miniscule minority of the NCD Holders of the Respondent. 10. The Respondent submits that the Petition is filed without there being any default. Thus, it is not maintainable, and contended as under: a. The Deben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the Respondent has nowhere in its Reply denied the Occurrence of Default. The Petitioner further submits, that this is proof that the Respondent is liable for the breaches under the DTD and other Transactional Documents and the Consent Terms. 17. The Petitioner, in its Affidavit in Rejoinder, submitted that the status of the Petitioner, being a minority debenture holder, is in no manner, a bar for its right to initiate appropriate proceedings under the Code. The Petitioner submitted that a Debenture Holder is a 'financial creditor' under Section 5(7) of the Code. The Petitioner then relied upon clause 9.8.3 of the DTD which narrates as: 'Notwithstanding anything to the contrary contained in this Deed, the Issuer acknowledges the Debenture Trustee's and Debenture Holder's unqualified right to take all such actions as may be available to them under various policies and schemes promulgated by the RBI from time to time (including but not limited to such actions in accordance with the RBI's Strategic Debt Restructuring Scheme under the RBI's Distressed Assets Framework to convert the Secured Obligations into paid-up equity share capital of the Issuer and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsuant to the default under the Consent Terms, the Petitioner addressed a letter to the Debenture Trustee, of the blatant and continuous breach of the Consent Terms, committed by the Corporate Debtor. Consequently, the Debenture Trustee, under its sole discretion and in accordance with clause 9.2 directed the Petitioner to take legal action as mandated under the DTD and under law once again acknowledging the default on part of Corporate Debtor. 23. On going through the submissions made by the Learned Counsel for the Petitioner and on perusing the documents produced, which are placed on record, it is clear that the Corporate Debtor has defaulted in repayment of debt. Hence, owing to the inability of the Corporate Debtor to pay its dues, this is a fit case to be admitted u/s 7 of the I&B Code. 24. The Corporate Debtor having admitted their liability in the earlier Company Petition 45 of 2020 through Consent Terms is estopped from disputing of the existence of "debt" and "default" since this Company Petition is nothing but second round of litigation in respect of same debt and default. 25. As a consequence, keeping the aforesaid facts in mind, it is found that the Petitioner has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any legal right or beneficial interest therein; 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; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor. d. That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. e. That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. f. That the order of moratorium shall have effect from the date of pronouncement of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, as the case may be. g. That the public announcement of the corporate i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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