TaxTMI 
TaxTMI 
TaxTMI 
2019 (8) TMI 1381
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.... 10/- each and paid-up share Capital Rs. 75,00,000/- (7,50,000 Equity Shares of Rs. 10/- each) having its registered office at A/04/A, Nusa Dua R.Narayanapura Road, Whitefield, Bangalore - 560 066. b) The total amount of debt is Rs. 5,02,23,791/- (Rupees Five Crore Two Lakhs Twenty Three Thousand Seven Hundred and Ninety only) which involves two components. One such component is a sum of Rs. 4,05,45,011/- (Rupees Four Crores Five Lakhs Forty Five Thousand and Eleven Only) which sum includes the principal amount of Rs. 2,33,78,962/-(Rupees Two Crores Thirty Three Lakhs seventy Eight Thousand Nine Hundred and Sixty Two only) as well as interest of a sum of Rs. 1,71,66,049/-(Rupees One crore Seventy One Lakhs Sixty Six Thousand and Forty Nine only) as on 31.03.2017 and another component is a sum of Rs. 31,80,112/-(Rupees Thirty One Lakhs Eighty Thousand One Hundred and Twelve Only) which sum includes the principal amount of the sum of CHF 50,000/- (Swiss Franc Fifty Thousand Only) as well as interest of a sum of Rs. 4,55,112 (Rupees four Lakhs fifty Five Thousand One Hundred and Twelve only) as on 31.03.2017. c) A sum of Rs. 64,98,668/- (Rupees Sixty Four Lakhs Ninety Eight Thousa....
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....31/10 - Rs. 50.00 lakhs 4. By 30/11 - Rs. 50.00 lakhs 5. By 31/12 - Balance due of Interest + Principal" (b) "Similarly Managing Director of the Respondent Company at Annexure-AB-47 dated 4th January, 2014 has given account of schedule of some payments which is mentioned therein as given below: 1. January 2014 - Nil 2. End February 2014 - Rs. 15.00 lakhs 3. End March 2014 - Rs. 30.00 lakhs (That will mean that we would have paid Rs. 40,00 lakhs by the 31st March, 2014) 4. End April 2014 - Rs. 10.00 lakhs 5. From End May to end November 2014 we will divide the balance against principal and pay it. 6. Interest will be paid in two instalments on end December and end January 2015" 5. The Director and Chief Operating Officer of the Respondent Company have also sent an e-mail dated 22.07.2013 giving the details of amount received, interest accrued at Annexure AB-12. 6. However, the respondent has denied that this is not a financial debt as the loan agreement executed therein is not sufficiently stamped under the Karnataka Stamp Act, 1957 and therefore cannot be looked into for any purpose. He has also submitted that the loan agreement in terms of Section 33(1) of th....
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....000 to the Respondent for booking an apartment in another project of the Respondent company. Later when the Petitioner learnt that the Respondent project is taking much time to develop, he decided to get back his money. 11. It is further submitted by Respondent that the Respondent is ready to repay the balance amounts namely Rs. 63,80,000/- (Rupees Sixty three lakhs Eight Thousand) and the amount of CHF 50,000 which amounts to Rs. 26,60,600/- (Rupees Twenty Six Lakhs Sixty Thousand Six Hundred). These amounts would not constitute a debt due to the Petitioner under its capacity as a 'financial creditor'. Therefore, the instant petition is not maintainable alleged the Respondents. 12. The Respondent has vehemently opposed the contentions of the Petitioner that the Petitioner is a financial creditor in respect of I&B Code, 2016 by stating there can be no financial debt due from the Respondent in existence since it would be in violation of the foreign Exchange Management Act, 1999 and the Rules and Regulations framed thereunder, and therefore, barred under law. 13. (a) As per Respondent objection: The Foreign Exchange Management (Deposit) Regulations, 2016 issue under Regulation 6 (....
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.... or standing as security for a third party loan. Therefore, no lending of money by the Petitioner is permissible under law. (c) The term Section 2(e) of the Foreign Exchange Management Act (FEMA), 1999 defines a Capital Account Transaction as under: "2(e) "Capital account transaction" means a transaction which alters the assets or liabilities, including contingent liabilities, outside India of persons resident in India or assets or liabilities in India of persons resident outside India, and includes transactions referred to in sub-section (3) of section 6."" (d) Pursuant to Section 6(3) of the FEMA 1999, the RBI has formulated the Foreign Exchange Management (Permissible Capital Accounts Transactions) Regulations, 2000. In terms of Regulation 3(2) any person may sell or draw foreign exchange to or from an authorised person for a capital account transaction specified in the Schedules of the said Regulation, 2000. It is submitted that one of the permissible capital account transactions under Schedule I which deals with persons resident in India is Foreign currency loans raised in India and abroad by a person resident in India" (e) Regulation 6(1) of the FEMA (Borrowing or Len....
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....s exceptional circumstances for the same exist; "11. The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim in pari delicto protior est condition defendantis. But as stated in Anson's principles of the English Law of Contracts, 22nd Edn., P.343: there are exceptional cases in which a man will be relieved of the consequences of an illegal contract into which he has entered-cases to which the maxim does not apply. They fall into three Classes (a) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherance of it; (b) where the plaintiff is not in pari delicto with the defendant; (c) where the plaintiff does not have to rely on the illegality to make out this claim" (k) It is further submitted that the Respondent has acceded to the fact that the Petitioner has parked moneys; amounting to Rs. 2,33,78,962 and CHF 50,000 towards advance towards purchase of apartment. However, the components and interests and tenure are not permissible under law, and therefore, there is no '....
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.... @ 30% thereon and Penalty levied for not paying IT in time. 19. It is amply clear that the Respondent was unable to pay even the admitted liabilities and has become insolvent. E-mails dated 31.01.2013, 30.12.2013. 01.10.2015 and 24.11.2015 sent by Mr.Koshy Varghese, the Managing Director to the Petitioner clearly indicate the admission of liability. 20. A legal notice dated 16.05.2017 had been sent to the Corporate Debtor to pay the dues within a period of 21 days has been received by the Corporate Debtor on 19.05.2017 has also been enclosed along with the Petition. 21. In response to the legal notice dated 16.05.2017 a belated reply has been sent by the Counsel for Corporate Debtor on 28.06.2017 in which there was a clear admission of the sum disbursed by the Petitioner, whereas by raising untenable and frivolous defences the Petitioner's claim has been totally denied. 22. Mr. Koshy Varghese, Managing Director and the Respondent Company, from the beginning have plotted against the Petitioner to swindle or defraud and deprive the Petitioner of his hard earned money. Initially the amount was advanced solely on the basis of innumerable representations made by Mr. Koshy Varghese,....
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....e debt in earlier accounts of the Company under the term "advance from customer" and subsequently removed from the same accounts, the Respondent is only guilty of manipulation of their own accounts. Having accepted the sum as advance and accounted for the same and investment in real estate business is a direct conflict with investment, onus rest on Respondent's shoulder and the Petitioner is in no way be fastened with any liability. The Respondent being a borrowing Company and its borrower and its Promoter were completely responsible and the burden falls on the Respondent to ensure that the laws of the land were adequately complied with. 28. Petitioner reiterates that the contention of the Respondent that the Loan Agreement had been inadequately stamped cannot be agreed to, as the loan agreement is prepared by the Respondent themselves. Petitioner is always ready and willing to pay additional stamp duty if any to cure the said defects as alleged by the Respondent. 29. Petitioner further submits with regard to the issue signature of both the parties are not affixed on each page of the loan agreement is untenable, as signature of both the Petitioner and Respondent is affixed proper....
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....unter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (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" 32. The Petitioner has also cited case law which reads as follows: Hon'ble Supreme Court in Chilakuri Gangulappa v. Revenue Divisional Officer, Madanapalle [2001] 4 SCC 197 held as under: "13. In the present case, an argument is raised that the instrument is not actually an agreement of sale as envisaged in the Schedule to the Stamp Act (subject to amendment made by the State of Andhra Pradesh) but it is only a deed of compromise entered into by two disputing persons. We refrain from expressing any opinion on the said plea as it is open to the parties to raise their contentions regarding the nature of the document before the trial court. In the present case the trial court should have asked the appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the stamp duty together with a penalty amount....
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....ty Three thousand One Hundred Forty Only) with the Company. The Respondent Company started since 2002 and it is carrying lot of current and non-current liability and is blocked in current assets i.e. inventories, Trade Receivables. All these circumstances suggest, that it is fit case to be admitted, under Section 7 of Insolvency & Bankruptcy Code for Corporate Insolvency Resolution Process to be initiated. 35. On perusal of the Application, we found that the instant Application is filed strictly in accordance with law, and Shri Ravi Shankar Devarakonda with Registration No.lBBI/IPA- 001/IP-p00095/2017-18/10195 is a qualified Resolution Professional and not facing any disciplinary proceedings as per the declaration filed by him. Therefore, it is a fit case to admit to initiate Corporate Insolvency Resolution Process with all consequential actions like appointment of IRP, moratorium etc. 36. In view of the above facts and circumstances of case, and by exercising powers conferred on this Adjudicating Authority, u/s. 7(5)(a) and other extant provisions of IBC, 2016, the following orders are passed by admitting the petition:- (1) The Company Petition bearing CP(IB)46/18 is hereby ad....