TaxTMI 
TaxTMI 
2019 (5) TMI 382
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....re:- (1) M/s SREI Infrastructure Finance Limited, Petitioner/Financial creditor was incorporated on 29th March, 1985. M/s Amrit Jal Ventures Private Limited (Formerly known as Amrit Jal Ventures Limited) was incorporated on 18th June, 2001 having its registered office at 1-7-293, MG Road, Secunderabad - 500003.. The Authorised share capital of the Corporate Debtor Company is 259,00,00,000/- and paid-up capital Rs. 182,47,71,860/-. (2) It is averred that on the request from Corporate Debtor to the Financial Creditor, a Rupee Loan Agreement (RLA) was executed between the Financial Creditor and Corporate Debtor on 19.04.2011 whereby Financial Creditor had agreed to provide a Rupee Loan facility of Rs. 80 crores to the Corporate Debtor. The Rupee Loan Agreement dated 19.04.2011 is marked as Annexure-8 to the Petition. (3) It is averred that the Rupee Loan Agreement (RLA) was thereafter amended by Supplementary Agreement dated 03.06.2011 wherein the repayment schedule of the loan advanced by the Financial creditor to the Corporate Debtor was extended. The said Agreement is marked as Annexure-9. (4) It is averred that on receipt of draw down request from the Corporate Debtor on 2....
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.... alleged that the Petitioner/ Financial Creditor filed OA No.559/2015 on 19.10.2015 for recovery of alleged debt under Section 19 of Recovery of Debts due to Banks and Finance Institutions Act, 1993 before Hon'ble DRT-1 Kolkata. The Financial Creditor also filed IA No. 1975/2015 for payment of amounts received through foreign investment which was allowed and Corporate Debtor filed an Appeal No. 50/2016 and Hon'ble DRAT directed DRT Kolkata to decide the preliminary issue in OA 559/2015. (5) The Corporate Debtor contended the Agreements contained Arbitration Clause and non-disbursement of loan amount by Financial Creditor caused loss to Corporate Debtor, for which Corporate Debtor has filed an Arbitration petition No. AP No.6/2016 before Hon'ble High Court, Kolkata under Section 11 of Arbitration and Conciliation Act, 1996 which was allowed on 02.08.2016 by appointing an Arbitrator and referred the disputes to Arbitration. Aggrieved by the order dated 02.08.2016, Financial Creditor preferred SLP No. 30341/2016 before the Hon'ble Supreme Court and Hon'ble Apex Court on 28.10.2016 directed the parties to continue with Arbitration and the SLP is pending adjudicati....
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....y and incongruous. 4. The financial Creditor filed rejoinder to the reply/counter of Corporate Debtor. Averments in brief are:- (1) The Financial Creditor relied on the judgment of Hon'ble Supreme Court of India in Innoventive Industries Ltd. v. ICICI Bank Ltd. & And Anr, that for the purpose of an Application under Section 7 of the IBC, 2016, the Adjudicating Authority is given a limited mandate only to ascertain whether the Application filed is complete and a default has occurred for the Application to be admitted by the Adjudicating Authority and that in this case the Corporate Debtor has committed default in paying the admitted debt to the Financial Creditor. (2) It is the case of Financial Creditor that the Corporate Debtor has not repaid the Principal sum of Rs. 30.00 crores and remains due and outstanding from the Corporate Debtor and as per the above judgment of Hon'ble Apex Court, it is irrelevant to see whether the Financial Creditor has failed to disburse the entire amount covered under the loan agreement for which the Corporate Debtor was not able to pay its dues. It is also the case of the Financial Creditor that due to non-fulfilment of conditions by the....
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....is the case of Financial Creditor that it has advanced at the first instance a loan of Rs. 30 crores to the Corporate Debtor. It was on 04.06.2011. A draw-down request was made by Corporate Debtor on 23.05.2011 and basing on which a sum of Rs. 30 crores was disbursed. The case of Financial Creditor that the Corporate Debtor committed default of Principle of Rs. 30 crores though interest was paid from time to time. However, loan due as on 13.12.2017 which includes principle and interest was Rs. 45,03,86,230/- 9. The contention of the learned Counsel for Petitioner in order to admit the Petition under Section 7 of the Code, the Petitioner has to establish the debt due by Corporate Debtor and further to establish the default. Prior dispute if any, is a matter to be considered in the case of petition filed by Operational Creditor. Whereas in the case of Application filed under Section 7, the Financial Creditor has to establish by other evidence or documents that debt became due which was committed default. The contention of the learned Counsel for Financial Creditor that Financial Creditor has disclosed all previous litigations and arbitration proceedings pending before the Arbitrator....
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....arned Counsel for Financial Creditor that financial Creditor shall furnish record of default recorded in Information Utility or such other record or evidence of default as may be specified. So, the contention of the learned Counsel for Financial Creditor that voluminous documents are placed before the Adjudicating Authority to establish that Corporate Debtor committed default of the debt. Counsel contended the Corporate Debtor did not raise dispute of sanctioning Rs. 30 crores and disbursement of the same under RLA. Only contention of the Corporate Debtor that there is no default. The learned Counsel contended that debt due is not discharged then it amounts to default. Counsel contended the debt of Rs. 30 crores along with interest became due which was not paid and therefore Corporate Debtor committed default. On the other hand, contention of the learned Counsel for Corporate Debtor that the Financial Creditor received an amount of Rs. 28.40 crores towards interest over the loan. Counsel contended the Financial Creditor has invoked the pledge of 6,57,72,0250 shares. The value of shares invoked is Rs. 161.14 crores. The contention of the learned Counsel for Corporate Debtor, the sha....
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....ing to the Financial Creditor date of default was 15.11.2015 and interest is calculated on the Principle of Rs. 30 crores from the date of alleged default and alleged debt due by Corporate Debtor is shown as Rs. 45,03,86,213/-. 15. The Financial Creditor admitted receiving interest for certain period. The Financial Creditor admitted invoking pledge of shares. The contention of learned Counsel for Financial Creditor that the value of each share shall be Rs. 1/- as per guidelines of RBI. The Financial Creditor has not given the value of each share at the time when it invoked the pledge of shares in the year 2015. On the other hand, the contention of Corporate Debtor the value of pledged shares is Rs. 161.14 crores. If value of the shares as contended by Corporate Debtor is taken into account, then there is no debt payable by the Corporate Debtor to the Financial Creditor and there is no question of committing any default. Of course there may be some dispute, however it is sub judice. The limited question for the Adjudicating Authority to see whether there was a debt which became due and payable and which is not paid. When Corporate Debtor is contending value of pledged shares is Rs.....