TaxTMI 
TaxTMI 
2019 (12) TMI 893
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....s agreement whereunder the INDIAREIT Fund Scheme - IV agreed to invest Rs. 134,95,61,430/- to fund construction and development of a residential and commercial project in Ambience Projects And Infrastructure Private Limited, i.e. Special Purpose Vehicle (SPV) of the Corporate Debtor, deployed to execute the project. C. That in the Share Subscription cum Shareholders Agreement dated 28.05.2011, certain amendments were made vide amendatory agreement dated 03.09.2011 and 07.02.2012. D. That in the year 2015 disputes arose between the Financial Creditor and the Corporate Debtor on account of demands of Corporate Debtor on additional funding. That the Financial Creditor had already invested Rs. 200,00,00,000/- in Ambience Projects and Infrastructure Private limited. E. That in view of failure of the parties to resolve the dispute, the Financial Creditor as per the clause 12.3(A) of the Investment agreement called upon the Corporate Debtor on 06.09.2016 to pay an amount equivalent to Investor Contribution i.e. Rs. 200,00,00,000 with IRR of 20% on such total investors contributions. F. That since the disputes were pending, vide letter dated 30.03.2014 c....
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....lement agreement establishes that the relation between the applicant and the Corporate Debtor were that of vendor and vendee and it is a civil dispute. 4. The applicant has filed a detailed Rejoinder to the reply of the Corporate Debtor, on 17.01.2019. The applicant and the respondent have filed written submissions on 18.04.2019 and 16.04.2019 respectively. The applicant has mentioned that in terms of section 74 of the Arbitration & Conciliation Act, 1996 the settlement agreement is an Arbitral Award and has attained finality, as no objection or appeal has been filed against the Settlement Agreement by the Corporate Debtor. And that the corporate debtor has duly admitted the financial debt under the settlement agreement and acted on the same by depositing Rs. 65 crores. In relation to the vendor-vendee relation, the applicant represents that since the word 'Refund' as used in the Settlement Agreement denotes existence of debt, and refund is not a term used for consideration, the consideration (value of securities cannot be ever increasing) therefore cannot carry interest, and in present case the amount carry interest: A company cannot buy its securities until authorized ....
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.... agreement to mean and refer to Investor Shares and Investor Debentures. Article 12 of the said agreement deals with the default clause. Clause 12.3 of Article 12 of the agreement dated 28.5.2011 in the event of default requires on the part of the Petitioner to issue a notice of default and exercise, in case of the default not being cured within 90 days to terminate the agreement which obligates upon termination of the Developer/Promoter to pay an amount equivalent to total Investor contribution together with IRR of 20% of such total consideration within a specified period. Further other options in case of non-payment in the event of default and non-refund of amounts along with IRR of 20% to the Investor/Petitioner is also provided. Further clause 12.5 again reinforces the return of total Investor Contribution plus IRR of 20% to be treated as a preferential capital. Reciprocal arrangement is also provided to the Promoter/Developer by way of call option in the event of default on the part of investor. 7. On September 3, 2011 an Amendment Agreement has been entered into in relation to the agreement dated 28.3.2011 wherein it is seen that certain clauses have been amended including....
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.... 7th April, 2017. (ii) An amount of Rs. 65,00,00,000/- (Rupees Sixty Five Crore only) shall be paid by the Promoter and/or Developer and/or SPV to the Investor on or before 30th September,2017 together with simple interest @ 6% per annum subject to deduction of Tax at source at applicable rates with effect from the date of payment of the said amount by the Investor to the SPV till 30th September,2017 (iii) An amount of Rs. 70,00,00,000/- (Rupees Seventy Crore only) shall be paid by the Promoter and/or Developer to the Investor on or before 28th February, 2018 together with simple interest @ 6% per annum subject to deduction of Tax at source at applicable rates with effect from the date of payment of the said amount by the Investor to the SPV till 28th February, 2018. (b) For any delay in the payment of the amounts due by the Promoter and/or Developer to the Investor, or part thereof, beyond the dates mentioned in clause 2.2(a) above, the Promoter and/or the Developer shall pay simple interest @ 14% per annum to the Investor, subject to deduction of Tax at source at applicable rates, with effect from the respective due dates till the actual date of payment....
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....such transfer. Also 47,227,721 of Investor Debentures in the SPV shall stand redeemed by the SPV. • 5,200 ordinary Equity Shares held by the Investor; • 3,500 Class A Equity Shares held by the Investor; and 47,227,721 Investor Debentures. • Further Rs. 22,76,35,790/-(Rupees Twenty Two Crore Seventy Six Lakh Thirty Five Thousand Seven Hundred and Ninety only) out of the Unsecured Loans by the Investor to the SPV shall stand reduced. (d) That on receipt of Amount Due and outstanding interest, by the Investor from the Promoter and Developer or any of them, and on completion of transfer of the Inventor Securities by the Investor to the Promoter and/or the Developer or their designated nominee(s), in accordance with the terms hereof, none of the Parties shall have any claims whatsoever against any of the other party/ies in respect of the entire subject matter of this Agreement, including the Investment Agreement (e) Each of the Promoter, Developer, SPV and the Investor shall be responsible, at their costs and expenses, for making necessary applications, executing documents and obtaining approvals as may be required for repatriatio....
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....#39; A Financial Creditor is defined under Section 5(7) of IBC, 2016 as follows: Section 5(7) "financial creditor" means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; 'Debt' and 'Default' has been defined respectively under Section 3(11) and 3(12) of IBC, 2016 as follows: "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt, "default" means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor, as the case may be; 10. Thus, having perused the Application and the subsequent responses filed by the Applicant as well as the Respondent and also taking into consideration the different agreements entered into between the parties and the definition of financial debt (supra) more particularly in relation to 'Investor Debentures', whether any coupon rate is prescribed or not comes within the 'financial debt'. Further as observed fro....
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....f them are jointly and severally liable for the amounts due to the Financial Creditor having signed the agreements jointly and in the circumstances the contention that no privity of contract exists as between the parties raised by the Corporate Debtor cannot also be accepted, particularly in view of legal proposition laid down by Hon'ble NCL-AT in the decision of Mrs. Mamatha v. AMB Infrabuild (P.) Ltd. [2019] 101 taxmann.com 309/151 SCL 507. Thus when repayment was demanded and since there has been no repayment till date, whether it be of 'debenture' or 'loan'being attendant with payment of interest or not, as agreed between the parties and the amount being disbursed against the consideration for the time value of money thereby falling within the definition of 'Financial Debt' and there is default in repayment of the 'financial debt' and that a default has been committed in terms of Section 3(12) of the Code of a 'financial debt' as defined under Section 5(8) of the Code and that the Applicant has rightly invoked the provisions of the Code. From the Application filed it is seen that the Applicant has named an interim resolution professio....