9911796707
TMI Blog2023 (1) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... Per : Justice Rakesh Kumar Jain : This appeal is directed against the order dated 01.10.2019, passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi, Bench-II), by which an application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') by the Appellant 'Shrem Residency Private Limited' (Financial Creditor) against the Respondent 'Shraman Estates Private Limited' (Corporate Debtor) for initiation of Corporate Insolvency Resolution Process (in short 'CIRP') of the Corporate Debtor has been dismissed. 2. As per the case of the Appellant, the Appellant entered into a collaboration agreement dated 31.08.2012 as a developer with M/s GRG Estates Pvt. Ltd. and Shraman Estates Pvt. Ltd. (Own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e drawn in the bank account bearing no. 00602560011718 maintained by the Appellant with HDFC Bank, Fort Nanik, Motwani Marg, Mumbai and was duly debited from its account on 04.09.2012, 03.10.2012 and 07.01.2013 and credited to the account of the Respondent. It is further alleged that as per the term sheet, Rs. 6 Crores was advanced as inter corporate deposit (ICD) for a period of 180 days with interest payable @ 24% per annum against security of the post dated cheques, mortgage over the property besides the guarantees. It was also decided to open an escrow account by virtue of escrow agreement which was executed on 04.08.2014. 3. The Appellant filed an application under Section 7 of the Code on 16.05.2019 in the prescribed form 1, in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m sheet dated 02.09.2012 and the addendums dated 31.12.2012 to the agreement and the original term sheet and the escrow agreement dated 04.08.2014 shows that the documents which form a contract between the parties are the agreement, the original term sheet and the addendums only, as the escrow agreement being unexecuted by HDFC Bank, which is clearly stated to be one of the parties to the escrow agreement in the opening recitals of the escrow agreement, cannot be considered a valid contract. 7. A further analysis of the agreement, the original term sheet and the addendums show that the agreement and the term sheet contain completely different terms of repayment and both are still in force as neither has been terminated by either party. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the time value of money. It is further submitted that the amount advanced is secured by equitable mortgage dated 04.09.2012 and charge was notified in Form-A. It is further submitted that besides the equitable mortgage deed a joint and several guarantee cum indemnity was also executed in respect of the amount of loan. Counsel for the Appellant has then referred to an application i.e. I.A. No. 3147 of 2022 by which the board resolution dated 22.08.2012 of the Respondent by which they have decided to avail a loan of Rs. 6 Crores and the board resolution of the Appellant dated 21.08.2012 by which they decided to advance a loan of Rs. 6 Crores has been placed on record. He has also placed on record the account statement of the HDFC bank in or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has to be read alongwith the collaboration agreement which is the basic document. It is submitted that the term sheet etc flows from the collaboration agreement. It is further submitted that the Adjudicating Authority has rightly held that there is difference between the term sheet and the collaboration agreement and both are in force because the collaboration agreement still subsist and has not been terminated as yet, the Adjudicating Authority could not repose its confidence in it and has rightly recorded a finding that the Appellant has failed to establish the terms of advancing the money, its repayment and default, therefore, once the advancement of the loan and the default is not established, the application under Section 7 has righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ped the payment of interest accrued on the loan. The term sheets were also executed, evidencing the fact of advancement of loan, time period for repayment and rate of interest. The security was given by way of equitable mortgage and personal guarantees by the owner of the loan amount. The evidence is there on record of the transfer of the amount in question from the account of the developer to the account of the owner and also the payment of interest by the owner to the developer. It is also a fact on record that the owner stopped the payment of interest and as a matter of fact the amount advanced by the Appellant to the Respondent, used for the purpose of purchasing the land by the owner in its name and the project has not been started at ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
