TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 541
X X X X Extracts X X X X
X X X X Extracts X X X X
....r declared the account of the Corporate Debtor as Non-Performing Asset (NPA) due to continuing defaults. Thereafter, by way of an assignment agreement dated 29.09.2017, the original lender (Kotak Mahindra Bank) assigned the debt to the Financial Creditor herein, along with the underlying securities. 3. Despite the said restructuring, and repeated request, reminders and demands by the Applicant, the Corporate Debtor failed and neglected to repay the amount due under the aforesaid loaning facility and/or adhere to the terms and conditions of Restructuring Letter. Therefore, the same stood revoked on February 12, 2019. As a result, a principal amount of Rs. 9,02,67,946/- along with the interest component @ 20% p.a. is due and payable at the aforementioned principal amount from April 23, 2019 till the realization, stands due and outstanding at the hands of the Corporate Debtor. 4. The Corporate Debtor has appeared and filed the reply dated 06.11.2019. The facts of the reply, in short, is that the application filed under Section 7 is incomplete and the applicant has failed to provide the details of the amount claimed to be in default and the date on which the default is occurred. Furt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sactions. The Corporate Debtor was once again constrained to request the Financial Creditor vide its email dated 07.08.2019, 12.08.2019 to provide for the statement of the restructured loan account. The Financial Creditor vide its email dated 16.08.2019 reverted attaching the account statement as on 31.07.2019. On a perusal of the said account statement, the Corporate Debtor was shell shocked as the Financial Creditor, in contradiction of the restructuring, had conveniently bifurcated the loan agreements and its incidental calculations. Further, since the execution of the restructuring between the parties, this was the first time the Financial Creditor had rescinded from its restructured obligations and arbitrarily reverted to terms of the aforesaid separate loan agreements, which had already been superseded by an agreement between the parties herein. The copy of the account statement substantiating the repayment in terms of the restructuring is annexed as Annexure R-5. Copies of email dated 07.08.2019, 12.08.2019 and 16.08.2019 are annexed as Annexure R-6. 9. The Corporate Debtor vide its email dated 16.08.2019 raised its concerns regarding the account statement provided by the F....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en Chaudhri and Mrs. Amita Chaudhari amounting to Rs. 7,65,96,414/- and the Financial Creditor reserves its right to proceed against the individual. 16. We have heard the learned Counsel appearing for the Applicant/Financial Creditor as well as the Corporate Debtor and perused the averments made in the application, reply, rejoinder and the documents filed with the application, reply and rejoinder. 17. Learned Counsel appears for the Financial Creditor, in course of his arguments, submitted that originally on the request of the M/s. Noida Medicare Centre Limited (Corporate Debtor), Kotak Mahindra Bank Limited (Original Lender/Assignor) granted an overdraft facility of INR 4,50,00,000/- only along with the interest compounding at 20% per annum to the Corporate Debtor by Master Fund Base Facility Agreement, annexure 10 at page 207. 18. He further submitted that the said facility was secured by way of mortgage by deposit of title deed together with all the present and future super structure. 19. He further submitted that on 30th June, 2016, the Original Lender declared the account of Corporate Debtor as Non-Performing Asset (NPA) as a result of continuing default in the repayment o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der Section 7(2), an application is to be made wider subsection (1) in such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in part III, particulars of the financial debt in part IV and documents, records and evidence of default in part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... taken over for Rs. 13.5 crores and once a loan stood settled, the Financial Creditor cannot go beyond the settlement amount and the statement sent by the Financial Creditor to the Corporate Debtor, clearly, demonstrate the loan cost of the Corporate Debtor is of Rs. 13.5 crores. 25. He further submitted that after receiving the processing fees of Rs. 33.50 lakhs and further receiving amount to the tune of Rs. 1,17,48,203/-, after the said restructuring the Financial Creditor could not have terminated the said restructuring unilaterally and therefore, the Financial Creditor has played fraud under Section 60(5) of the IBC, 2016 and liable to be punished. 26. He further submitted that under the garb of the present application, the Financial Creditor intent to pay waive for recovery against the Dr. Naveen Chaudhari and Mrs. Amita Chaudhari. 27. He further submitted that by filing this CA, the Corporate Debtor has annexed the Hon'ble Supreme Court judgment passed on 3rd December, 2019 in the case of M/s. Embassy Property Development Pvt. Ltd. vs. State of Karnataka in which Hon'ble Supreme Court held that the question of fraud can be enquired into by the NCLAT or NCLT in a p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d and includes a person to whom such debt has been legally assigned or transferred to. 33. Mere plain reading of the provision shows that a Financial Creditor means a person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred. Here, in this case, we find as per the assignment letter dated 29.09.2017, loan has been assigned to the Applicant by the Kotak Mahindra Bank, the Original Lender, therefore, the Applicant is a Financial Creditor under Section 5(7) of the IBC, 2016 and the outstanding due which the applicant claimed as a Financial Creditor is a financial debt under Section 5(8) of the IBC, 2016. 34. Therefore, we find, no force in the contention raised on behalf of the Learned Counsel appearing for the Corporate Debtor that the applicant is not a Financial Creditor and the amount which the applicant claimed is not a financial debt, rather, we are of the considered view that applicant is Financial Creditor and the outstanding due which the applicant claimed comes under the definition of "financial debt". 35. When we shall consider the case in hand, in the light of the aforesaid decisions then we find that here, i....