TMI Blog2023 (12) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... ice which is not disputed and accordingly concluded that sufficient reasons exists for Section 7 CIRP proceedings. The plea of the Appellant, to claim that the unstamped agreement/instrument in question cannot be admitted into evidence under the provisions of the Maharashtra Stamp Act, as a defense, cannot render the corporate insolvency resolution process ( CIRP ) non-maintainable, when there exists other material on record to prove existence of default in payment of debt - there are no fault in the orders of the Adjudicating Authority. Financial Creditor made an investment or gave a loan - HELD THAT:- There is a contradiction to the nature of amount payable to the Financial Creditor which is admitted in the audited financial statements placed by the Corporate Debtor, being shown as unsecured loan, and which has also been noted by the Adjudicating Authority. Furthermore, R1 himself has admitted that it has serviced the interest in accordance with the terms of the confirmation and undertaking till June 2017. National E Governance Services Limited (NeSL) Report dated 24.06.2020, also reflects this as a loan wherein the Date of Default is reflected as 23.12.2015 and the total ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequent paragraphs. 4. A petition under Section 7 of the IBC, 2016 was filed by Rupa Infotech Infrastructure Pvt. Ltd. (Financial Creditor (hereinafter referred as FC )/ (Respondent No.2) under IBC before the Adjudicating Authority seeking CIRP against Shankeshwar Properties Pvt. Ltd. (Corporate Debtor / Respondent No.1). 5. The case of the Financial Creditor / Respondent No. 2. is that it had provided inter corporate loan of Rs. 7 crores @ 12% per annum interest for which a document with the title of confirmation and undertaking @ interest of 1% per month is on record. The Corporate Debtor had undertaken to make repayment of Rs.7 crores on demand after a period of 90 days. The Corporate Debtor made payment of interest until 31.03.2016 and the last payment was made on 04.07.2017 for an amount of Rs.1 crore. Section 7 petition was filed by Rupa Infotech Infrastructure Pvt. Ltd. (Financial Creditor / Respondent No.2) under Insolvency and Bankruptcy Code, 2016 (in short IBC ) before the Adjudicating Authority seeking CIRP against M/s Shankeshwar Properties Pvt. Ltd. (Corporate Debtor / Respondent No.1). 6. Main ground for the present appeal is that the inter corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a debt and a default, which is not the case, in the present matter. 12. Appellant claims that the judgment in Satra Properties (India) Limited vs. Vistra ITCL India Limited 2022 SCC OnLine NCLT 15 [supra] is per incuriam as the same has not considered the binding judgment of the Hon'ble Apex Court in Essar Steel India Limited Committee of Creditors vs. Satish Kumar Gupta Ors. (2020) 8 SCC 531. Relevant extract are: ..152. So far as Civil Appeal No. 7266 of2019 and Civil Appeal No. 7260 of 2019 are concerned, the resolution professional has rejected the claim of the appellants on the ground of nonavailability of duly stamped agreements in support of their claim and the failure to furnish proof of making payment of requisite stamp duty as per the Indian Stamp Act despite repeated reminders having been sent by the resolution professional. The application filed by the appellants before NCLT came to be dismissed by an order dated 14-2-2019 [Essar Steel Asia Holdings Ltd. v. Satish Kumar Gupta, 2019 SCC Online NCLAT 736] on the ground of non-prosecution. The subsequent restoration application filed by the appellants then came to be rejected by NCLT through judgment date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case. 16. Respondent No.1 i.e. Resolution Professional has also relied upon the case of Mr. Aashish Kadam Anr. Vs. Nagpur Nagarik Sahakari Bank Ltd. Anr. Company Appeal (AT) (Insolvency) No. 355 of 2022, relevant portion is extracted, which also does not support the case of the Appellant. 5. We have perused the impugned order. In para 7 of the impugned order, document executed by the Corporate Debtor has been noticed. One of the facts which has been noticed is that present is a case of mortgage by deposit of title deed. Even if the facility agreement was not stamped, there was other materials on the record which clearly prove the financial debt which was owed by the Appellant, hence, we do not find any error in the order of the Adjudicating Authority admitting the Application under Section 7. We, thus, are of the view that there is no merit in the Appeal and Appeal deserves to be dismissed. .. 17. We heavily rely on the Apex Court s latest Judgement in Curative Petition (C) No. 44 of 2023 in Review Petition (C) No. 704 of 2021 in Civil Appeal No. 1599 of 2020 in which seven judge bench acknowledges and adopts the revised legal stance on the enforceabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of default has been established with respect to the CD / M/s Rupa Infotech and Infrastructure Private Limited. 20. Appellant himself states in his appeal that the Corporate Debtor had serviced the interest in accordance with the terms of the confirmation and undertaking till 2017. The admission of liability in the balance sheet of Respondent No.1, the part payments made by Respondent No.1 to Financial Creditor from time to time and NeSL records sufficiently demonstrate the admission of liability by Respondent No.1, even without relying upon confirmation and undertaking dated 24.09.2015. 21. Averments of the Rupa Infotech Infrastructure Pvt. Ltd. (Financial Creditor / Respondent No.2) and perusal of the impugned order shows that the Adjudicating Authority has arrived at a conclusion to admit the petition under Section 7 on the basis of only admitted documents namely, audited financial statements of Shankeshwar Properties Pvt. Ltd. / Respondent No.1 and also the demand notices addressed by R-2 to R-1 and also NeSL report. 22. The admission of liability in the balance sheet of Respondent No.1, the part payments made by Respondent No.1 to Financial Creditor from tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- (Rupees four crore eighty lakh eighty thousand only). 25. Adjudicating authority has rightly come to the conclusion that it is a loan and allowed Section 7 proceedings under IBC. Conclusions 26. Adjudicating Authority has come to a conclusion that there is a financial debt and there is a default on the basis of other documents, and no reliance whatsoever nature has been placed on the confirmation and undertaking dated 29.09.2015. Since Adjudicating Authority has not relied upon the confirmation and undertaking and has come to a conclusion that there is a debt and default and demand notice, which is not disputed and accordingly concluded that sufficient reasons exists for CIRP proceedings under Section 7 of IBC, 2016. The plea of the Appellant, to claim that the unstamped agreement/instrument in question cannot be admitted into evidence under the provisions of the Maharashtra Stamp Act, as a defense, cannot render the corporate insolvency resolution process ( CIRP ) nonmaintainable, when there exists other material on record to prove existence of default in payment of debt. On this count, we therefore, cannot find any fault in the orders of the Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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