TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 23
X X X X Extracts X X X X
X X X X Extracts X X X X
....Corporate Debtor is a private sector company and a group company of one, Gupta Global Resources Private Limited (GGRPL), who has guaranteed the loans given to GGRPL under a Deed of Guarantee dated 5.1.2015. It is stated that when GGRPL defaulted in payment, after that notice was issued to the Corporate Debtor for payment. However, Corporate Debtor failed to pay. 3. The Financial Creditor has stated that on 21.1.2010, a loan agreement was entered into between the Financial Creditor and the Gupta Global Resources Private Limited for Rs. 100 crores. On 3.1.2015, GGRPL entered into a Master Restructuring Agreement ("MRA") with, interalia, the Financial Creditor by which the Rs. 100 crore loan was restructured for Rs. 53 crores on terms and conditions mentioned therein. Article III, Clause 15.3 (iv)/ p.85 of this MRA provided the facilities together with all interest, default interest, liquidated damages, premia on prepayment or redemption, costs, expenses, the remuneration payable and all other amounts whatsoever stipulated shall be secured by an irrevocable and unconditional guarantee executed by the Corporate Debtor. On 5.1.2015, under the MRA, the Corporate Debtor executed an unco....
X X X X Extracts X X X X
X X X X Extracts X X X X
....long with interest, if any, which is disbursed against the consideration for the time value of money and includes- (a) money borrowed against the payment of interest ... (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clause (a) to (h) of this clause; 10. Reference has been made to the specific clause in the Deed of Guarantee dated 5.1.2015 to show that the Corporate Debtor unconditionally and irrevocably guaranteed the debt of GGRPL. 11. The Financial Creditor has stated that the total amount of debt granted to GGRPL was Rs. One hundred crores (restructured to Rs. 53 crores under the MRA) and Funded Interest Term Loan of Rs. 11,49,79,995/-. The Financial Creditor has further stated that the amount claimed to be in default is Rs. 94,95,68,366/- as on March 21st 2018 along with further interest. It is stated that this amount is also borne out by the statement of accounts certified by the Banker's Books of Evidence Act, 1891 and the I.T. Act 2000. 12. The Financial Creditor has stated that another company petition against the Corporate Debtor bearing CP No. 1140/2017 preferred by Reliance Commercia....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nancial Creditor has not produced any document to show that the demand notice was received by the Corporate Debtor and given the same, the liability cannot be staked at the doorstep of the Corporate Debtor. e) It is submitted that the Deed of Guarantee dated 5.1.2015 executed in Delhi is not duly stamped in accordance with the provisions of the Maharashtra Stamp Act, 1958, therefore, the same cannot be acted upon or looked into by this Tribunal. Reference has been made to Sections 18, 33 & 34 of the Stamp Act and it is stated that as per Section 18, if an instrument is executed outside Maharashtra, then same has to be stamped within 3 months from the date first it is received in the state. Reference has also been made to the judgment of SMS Tea Pvt. Ltd. v. Chandmari Tea & Co. Pvt. Ltd. [(2011) 14 SCC 66]. It is further submitted that since the Deed of Guarantee is insufficiently stamped, the Tribunal should not act upon it. f) It is submitted since the Financial Creditor brought the Deed of Guarantee into the state of Maharashtra from Delhi, the burden of complying with the provisions of Section 18 of the Stamp Act falls on the Financial Creditor. Reference has also been mad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ument was purchased by the Corporate Debtor as apparent from Pg. 253 of the Petition. The Corporate Debtor has acted upon the document. To substantiate this, reliance has been placed on Tata Capital Financial Services v Unity Infraprojects (MANU/ MH/1362/2015) to state that since the guarantee has been acted upon and the debt has been admitted by the corporate debtor, it cannot raise the objection that the document is insufficiently stamped. c. The Deed of Guarantee obliges the Corporate Debtor to interalia guarantee the obligations of GGRPL under the MRA Agreement (See Clause 3 of the Guarantee at Pgs. 255-256 of the Petition). It is thus a simplicitor promise to pay any debts of GGRPL and not a promise to pay a fixed sum. It is a simple letter of guarantee. Article 57 prescribes that stamp duty of Rs. 100 is payable on a letter of guarantee. d. Section 19(a) of the Maharashtra Stamp Act provides that in respect of an instrument or a copy thereof executed out of the state, the chargeable duty would be the difference between what has been paid outside and what is to be paid within Maharashtra. Thus, only the differential stamp duty is chargeable. In the present case, a stamp ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bearing CP No. 1140/2017 preferred by Reliance Commercial Finance Ltd. was admitted by this Tribunal, the petition preferred by the Financial Creditor bearing TCP No. 999/2017 was dismissed with liberty to file a claim before the Interim Resolution Professional appointed in CP No. 1140/2017. The Hon'ble NCLAT set aside the admission order passed in CP No. 1140/2017. Since the Financial Creditor was not paid its dues, the Financial Creditor filed the present petition. 18. The contention of the Corporate Debtor that the present petition is barred by the law of limitation does not survive as the guarantee was invoked by the Financial Creditor on 27th April 2017 and the Financial Creditor filed the present petition on 9.4.2018. 19. The proceedings before this Adjudicating Authority are summary in nature. It is pertinent to mention that stamp duty payable and paid on letter of guarantee is Rs. 100 and it has been purchased by the Corporate Debtor. Therefore, the Corporate Debtor has no right to raise the objection of insufficient stamp duty. 20. Concerning the mismatch in the principal amount and the interest rate chargeable, it is to be clarified that the Adjudicating Authority d....