TaxTMI 
TaxTMI 
2019 (6) TMI 1353
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....loans given to Sima Hotels and Resorts Ltd. (SHRL) by several original lenders. The Petitioner was assigned loans by various lenders as per the details mentioned below: S. No. Date of Assignment Original Lender/ Assignor Assignee Sl. No. Date of Assignment Original Lender/Assignor Assignee (a) 13.10.2014 IFCI Limited AARC (b) 24.03.2017 IDBI Bank Limited AARC (c) 30.06.2004 ICICI Bank Limited Asset Reconstruction Company (India) Limited 26.02.2016 Asset Reconstruction Company (India) Limited AARC 3. The Petitioner is claiming the default amount as per the decree issued by the Ld. DRT, Mumbai vide order dated 06.05.2011, along with further interest as per the decree issued in favour of IDBI, IFCI and ARCIL against the SHRL as well as the Corporate Debtor. 4. The background of the case is that IFCI, IDBI and ICICI granted following loan facilities to SHRL: a. Bridge Loan vide agreement dated 29.12.1986 to grant credit facilities amounting to Rs. Five hundred eighty-five lakhs of which, an amount of Rs. 450 lakhs was disbursed; b. Credit facility not exceeding Rs. 675 lakhs vide loan agree....
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..... Rs. Twenty crores within the first two weeks, i.e. on or before 11.11.2015 and Rs. 20 crores within the next two weeks, i.e. on or before 25.11.2015. It was further ordered that in case the appellants commit default in payment of any of the above instalments, the Appeal stands automatically dismissed. 10. The Petitioner has submitted that the Corporate Debtor also preferred two appeals against the order dated 06.05.2011 and the same stands dismissed. The petitioner has also stated that it has come to its knowledge that the Corporate Debtor has preferred a Review Application and also preferred an Application seeking Condonation of Delay and the said applications are pending for final disposal. Further, Mr Ajit Duggal who is the Legal Heir of Mr G.S. Duggal and Mrs Ranjit Duggal has also filed Appeal against the order passed by DRT and the same were numbered as Appeal no. 73 of 2013 and Appeal No. 211 of 2013. The said appeals are also pending for final disposal. The Petitioner has also stated that ARCIL had challenged the order dated 06.05.2011 in Appeal no. 141 of 2011 on the ground that the amount claimed in the OA was not allowed in totality, and the interest that was grante....
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....ate the deed of guarantee dated 06.11.1987 and has given notice dated 20.05.2017to the Lender as well as the Petitioner. d. The assignment of loans by the Lenders to the Petitioner is illegal. Also, the Recovery Officer, DRT-II, Mumbai did not allow Substitution Application in place of IFCI Ltd. vide order dated 29.07.2016, which is before the assignment with IDBI Bank Ltd to the Petitioner and this, shows that the Petitioner has no locus standi to enforce order dated 06.05.2011. Further, it is submitted that the assignment agreements are either unregistered or wrongly/illegally registered. e. That the DRT order dated, 06.05.2011 is disputed about leasehold property. Further, the Petitioner did not have any charge against the Corporate Debtor. Therefore, it is contended that the limitation period of 12 years as prescribed under Article 62 of the Limitation Act, 1963 is not applicable for want of valid security. f. That the Petitioner has mentioned the date of the first occurrence of default as 13.03.1989 and the present petition is filed on 10.07.2018 which is beyond the limitation period of three years as provided under Article 137 of Limitation Act, 196....
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....ioner submits that all the assignment agreements are registered and properly stamped and that the Corporate Debtor cannot pose any challenge to the validity of the same in these proceedings as has been held by the Hon'ble NCLAT in Lalan Kumar Singh vs M/s Phoenix ARC Pvt. Ltd., Company Appeal (AT) (Ins.) No. 485/2018. Further, in order to justify the assignment of debt from ARCIL to the Petitioner, the Petitioner has also relied on the notification of Reserve Bank of India dated 01.07.2015 that allow an Asset Reconstruction Company to acquire a debt from another ARC w.e.f. 23.01.2014. 14. The Petitioner has replied that it has initiated proceedings in the year 1990 against the Corporate Debtor as Corporate Guarantor for the default committed in the year 1989 in various forums till date. It is stated that the recovery proceedings were appropriately initiated within the limitation period that culminated in a decree in favour of the Petitioner dated 06.05.2011. The said decree is legally enforceable in terms of section 5(7) and 5(8) read with section 3(11) and 3(6) of I&B Code as on the date of initiation of section 7 petition and the debt due by the Corporate Debtor to the Petitio....
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....n an asset of the Corporate Debtor. The present proceedings under section 7 of the I&B Code are only concerned with the existence of Debt and Default. The credit facility was extended to the Borrower, and the same was secured by hypothecation and mortgage. Thus, it would not make any difference whether the Petitioner has a secured interest on an asset belonging to the Corporate Debtor or not as it is having a security interest in the assets of the Borrower Company. 23. It may be reiterated what the Supreme Court has held in Innoventive Industries Ltd. vs ICICI Bank and Ors., (AIR 2017 SC 4084): "28. ...It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within seven days of recei....
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....by the Corporate Debtor in favour of various lenders for the credit facilities availed by the Borrower. The contentions raised by the Corporate Debtor against the enforceability of the Deed of Corporate Guarantee are not tenable in the present proceedings. Thus, the Corporate Debtor is a guarantor for the loan taken by the Borrower Company. The guarantee is provided for a loan amount that is more than Rs.1,00,000/- and the amount due and payable by the borrower Company against the said loan is also more than Rs.1,00,000/-. 26. In light of the above facts and circumstances, we hold that the Petitioner has been assigned the loans by the Lenders of the Borrower Company. The Corporate Debtor is a Corporate Guarantor of the Borrower Company. The Petitioner is thus a Financial Creditor of the Corporate Debtor within the meaning of section 5(7) of the I&B Code. 27. The Corporate Debtor has not denied the sanction and disbursement of loan from the Lenders to the Borrower Company. The said loan is in default is also not disputed. 28. The Petitioner has proposed the name of Mr.Arunava Sikdar, a registered insolvency resolution professional having Registration Number [IBBI/IPA-001/IP....