2024 (9) TMI 1607
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....ed as Annexure-2 to the petition. 3. The parties entered into a loan agreement dated 03.06.2020 between the Petitioner on one side and M/s Gnex Realtech Private Limited (as borrower), the Corporate Debtor (as co-borrower) and Pricomm Media Distribution Ventures Private Limited (as co-borrower) on the other side. Copy of the said Loan agreement is annexed as Annexure-3 to the petition. 4. The loan facility was also secured interalia by the Corporate Debtor by pledging 2,16,00,050 equity shares of M/s. Gnex Realtech Private Limited to the Petitioner vide pledge agreement dated 10.09.2020. 5. The entire amount of Rs. 190,00,00,000/- was disbursed to M/s Gnex Realtech Private Limited (referred to as Gnex) on 23.06.2020. 6. It is submitted that the Corporate Debtor failed to pay the interest and/ or principal payable on the due dates under the loan agreement and an Event of Default occurred in accordance with Clause 12.1.1 of the Loan Agreement. Therefore, in accordance with the Prudential guidelines issued on the Assets Classification by the Regulatory Body, the account of the Corporate Debtor was classified as a Non- Performing Asset (NPA) on 30.09.2021. 7. The Petitioner issued ....
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.... (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. No Statement of Account certified in the bankers' book as defined in clause (3) of section 2 of the Bankers' Books Evidence Act, 1891 has been annexed to the Petition. Therefore, the Present Petition is clearly defective and deserves to be dismissed with costs. d. The Petitioner under "Particulars of Financial Debt" in Part IV alleges the amount in default to be Rs. 2,60,98,26,700/- as on 28.01.2022, however the break-up provided thereunder aggregates only to Rs. 1,53,31,43,970/-. No computation or basis for the Petitioner's claim for the excess balance of Rs. 1,07,66,82,730/- has been given. These figures are also inconsistent with the Petitioner's Statement of Account at Annexure 4. Moreover, in the notice under section 13(2) of the SARFAESI Act issued on 20.01.2022, the Petitioner claimed the outstanding amount to be Rs. 2,56,40,34,374/- as on 19.01.2022. Therefore, due to uncertainty in the alleged claims by the Petitioner the instant Petition is defective and not maintainable. e. The Loan Agreement dated 03.06.2020 is insufficiently stamped under the provisions of the Maharashtra Stamp Ac....
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....ent between the parties. Moreover, Ld. Counsel for the Corporate Debtor has even mentioned that the they have already made the part payment and the next installment will be paid by 25.09.2023. In our considered view, admission of part payments towards loan repayment and further promise to pay next instalment by 25.09.2023 amounts to acknowledgement of existing financial debt. 13. Further, as can be seen from the Loan Agreement dated 03.06.2020 the Corporate Debtor is borrower/co-borrower. The relevant clauses and Schedule are mentioned below: "Clause 1.1 (iii) : "Borrower(s)" means the company(ies)/person(s)/firm(s) named in the Schedule I hereunder as the Borrower(s) and whose address(s) and other details are also mentioned in Schedule I hereunder. The term "Borrower(s)" shall include the Co-Borrower(s), if any, named in Schedule I hereunder." SCHEDULE I S. No. Items Information to be Inserted 7. Borrower(s) Name: M/s. Gnex Realtech Private Limited Construction: Company Address/Registered Office Address: B-10, Lawrence Road, Industrial Area, Delhi- 110035. Corporate Identity Number: U70101DL2012PTC244685 Permanent Account Number: AAECG9631Q 8. Co- Borrower(s) 1. N....
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....based on any other record or evidence demonstrating default as per Regulation 2A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. Here it would be profitable to refer to section 7(3)(a) of the Code reproduced below: "7(3) The Financial Creditor shall along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board." 18. From the bare perusal of the statutory provisions, it is clear that the financial creditor can furnish any of the following to prove debt: a. record of default recorded with the Information Utility (IU); or b. such other record; or c. evidence of default as may be specified. Evidence of default has been specified as per Regulation 2A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which can be gainfully reproduced below: "2A. Record or evidence of ....
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....ention of mentioning different amount in the notice and in the part IV of the petition is inconsequential. Even then we examined the petition and found that the complete break-up is provided in the Foreclosure Statement at Annex.5 of the Company Petition and the amount mentioned therein does tally with the amounts mentioned in Part IV of the petition. Therefore, this contention of the Corporate Debtor is also rejected. 23. Further, the Corporate Debtor has raised the contention that the corporate debtor must mandatorily furnish details of 'person authorized to submit application' but such details are not furnished and therefore the signatory to the petition is not authorized to initiate specific proceedings under IBC. However, it is observed that the Board Resolution at Annexure 8 clearly states that Mr. Uttam Kumar is authorised on behalf of Indiabulls Housing Finance Limited to appear for and/or represent the Petitioner before the National Company Law Tribunal ("NCLT"), National Company Law Appellate Tribunal ("NCLAT") or such other authorities/forums/courts for the cases pertaining to the Code. We are satisfied that petition has been lawfully initiated on the strength of the bo....
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....ation to the IRP and his expenses until the constitution of CoC. 28. Accordingly, this Company Petition is admitted with the following directions: a. The above Company Petition (IB) 246(MB)/2022 is allowed and initiation of Corporate Insolvency Resolution Process (CIRP) is ordered against M/s. Essel Home Private Limited. b. This Bench appoints Mr. Ravi Prakash Ganti, having Registration No: IBBI/IPA-002/IP-N-00102/2017-18/10245, email: gantrip@gmail.com; Address: Flat no.2, Ashiana CHS, Plot no. 60-A, Sector 21, Khargar, Navi Mumbai-410210 as the Interim Resolution Professional to carry out the functions as mentioned under the Insolvency & Bankruptcy Code, 2016. c. The Financial Creditor shall deposit an amount of Rs. 5 Lakh towards the initial CIRP cost by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. d. That this Bench hereby directs operation of moratorium under section 14 of Insolvency and Bankruptcy Code, 2016 and prohibits the following: a. the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judg....