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2020 (10) TMI 963
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.... "Code") read with Rule 4 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter called as "Rules"). SUBMISSIONS OF FINANCIAL CREDITOR: - 2. The applicant granted a term loan of Rs.25,00,00,000/- (Rupees Twenty-Five Crores Only) on 12.06.2010 to the Corporate Debtor which were renewed and restructured/modified on the terms and conditions set out in the Sanction Letter dated 29.09.2012, 24.02.2014, 12.01.2015 and 01.07.2016. The applicant has produced the copy of Demand Promissory Notes executed by the Corporate Debtor on 02.07.2010, 29.09.2012, 24.02.2014, 12.01.2015 and 01.07.2016. A summary of immovable properties mortgaged in favour of the applicant along with other lenders of the Corporate Debtor is also produced by the applicant in 'written confirmation of title deed'. The applicant produced the statement of account for the loan account which shows that as on 30.11.2019a sum of Rs. 32,39,45,078/- (Rupees Thirty-Two Crores Thirty-Nine Lakhs Forty-Five Thousand and Seventy-Eight Only), is due from the Corporate Debtor. Since there was default in payment, the Applicant issued notice under Section 13(2) of the SARFAESI Act,2002 to the Cor....
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.... five-star deluxe beach resort with 165 rooms, built in traditional Kerala architectural style and that adopts green practices to achieve a zero-carbon footprint. The theme of the resort is "true celebration of Kerala Heritage" with focus on Malabar. The resort and spa blends with 400 metres of beach frontage and 1-kilometre backwater frontage. The resort has different categories of rooms including Presidential, Premium, Senator, Superior and Spa Villas. In the second phase of development, it proposed to start a convention centre for 2000 Pax which is located outside the core resort area, with all state-of-the-art facilities. The resort has a total built up area of about 2,00,000 Sq. Feet. Almost 90% of the civil construction (92 rooms and all common facilities) is over and 30% of the interior work has also been completed. Compound wall has been constructed around the entire property, substantial land development work has been completed and about 3.5 kilometres length artificial canal has been constructed to provide boating facility within the resort itself. c. The Corporate Debtor started construction of the resort during 2009-2010 by obtaining all mandatory approval and ....
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....a long lapse. Union Bank of India was not ready to sanction the additional loan, which was contrary to the agreement dated 22.10.2013. Hence the Corporate Debtor approached the Dhanlaxmi Bank for a financial assistance of Rs. 16 crores, and that Bank disbursed financial assistance on 28.9.2015. Hence the total loan availed is Rs. 89 crores. h. During 2015, the Bankers re-structured the loan and directed the Corporate Debtor to complete the work by September 2015 and to start the repayment of loan by September 2016 and complete the repayment by September 2022. i. Due to inordinate delay in sanctioning the facility by Bankers, the agreed equity of Rs. 20 crores brought in by the promoters had been used in servicing interest, which further resulted in cost escalation. Due to change in design and delay in sanctioning additional loan, the Corporate Debtor was forced to incur an actual finance cost of Rs. 61.40 crores till May 2017 against the estimated interest during construction period of Rs. 19.80 crores resulting in an increase of Rs. 41.60 crores in interest alone. In this connection it is pertinent to note that the actual amount invested as on date is Rs. 185 cro....
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....sum within 60 days of receipt of the notice. m. Challenging the SARFAESI Act proceedings, the Corporate Debtor filed S.A. No.274/2018 before the Hon'ble Debts Recovery Tribunal No. l, Ernakulam arraying the applicant herein as the 3rd Respondent and the same is pending consideration. n. Thereafter the lenders including applicant herein filed O.A. No.417/2018 before the Hon'ble Debts Recovery Tribunal No. l, Ernakulam, and the same is also pending consideration. o. The Corporate Debtor submitted a One-Time Settlement proposal to the lead Bank State Bank of India. p. The Corporate Debtor further stated that there was a joint meeting of lenders on 22.8.2019 at S.B.1., SAM Branch, Ernakulam. The minutes of that meeting shows that, they have received the O.T.S. proposal, but they have informed that they rejected the same on the reason that there is no upfront payment. Thereafter State Bank of India issued a letter dated 29.8.2019 agreeing for One-Time Settlement. The Corporate Debtor issued acceptance letter dated 17.09.2019 to which the State Bank of India issued a letter dated 30.9.2019 confirming the O.T.S. thereafter the monetary dispute w....
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.... 13.12.2019 Rs.12,50,00,000.00 Union Bank of India settled the matter on 5.11.2019 Rs.17,05,00,000.00 Total Rs. 67,69,49,303.00 However, the amount shown due, in the present application is Rs. 32,39,45,078/-. x. The respondents 1 to 3 further submitted that all the banks settled their respective claims under One Time Settlement with the Corporate Debtor alone. The respondents 2 and 3 are not parties to the settlement. On the basis of the above O.T.S the respective banks also accepted part payment of the amount allowing the Corporate Debtor (R1) to pay the settled amount in instalments. Section 62 of the Contract Act reads: - "62. Effect of novation, rescission, and alteration of contract. - If the parties to a contract agrees to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed." Hence there is a novation of contract under Section 62 of Contract Act and the original contract need not be performed. So, the applicant dated 05.11.2019 has no right or authority to demand the amount demanded in Annexure-R11. The amount due as per Annexure-R25 is not due as on the date of filing the above cas....
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....IBA itself is liable to be dismissed on that count. 7. It is further stated that 4th Respondent does not owe even a single rupee to the Applicant. He has not guaranteed for the debt as alleged, the authenticity and genuineness of documents relied upon by the Applicant to fasten liability on the 4th Respondent is already disputed by the 4th Respondent in a pending suit before the Hon'ble Debt Recovery Tribunal (DRT) in OA 417/2018. The Respondent filed an application as IA. No.1405/2019 before the DRT to issue a direction to the consortium, which filed the case, to produce the originals of the documents, which they are relying to fasten the liability against the 4th Respondent. The need of the production of the original documents was to send them for scientific examination to prove that the signatures appearing in those documents do not belongs to the 4th Respondent. 8. However, in the written argument of the Financial Creditor/applicant, the contention of the 4th Respondent regarding his specific pleading of forgery is not addressed or refuted. 9. Section 7 of the Insolvency and Bankruptcy Code, 2016 is misinterpreted by the Applicant. Here the Applicant by consortium, who....
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....nner 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 applicants 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 is to be satisfied that a default has occurred, that the corporate debtor is entitled to ....
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....f assets of guarantors of the corporate debtor vis-à-vis the moratorium on the assets of the corporate debtor, it is clarified by way of an explanation that all assets of such guarantors to the corporate debtor shall be outside the scope of moratorium as per Section 14(3) (b) of the Code. 14. Accordingly, the following points are considered to arrive at a decision in this application. (a) Whether the applicant granted financial assistance to the Corporate Debtor, the same was disbursed to the Corporate Debtor and there was a due from the Corporate Debtor to the Financial Creditor and that there was default in repayment of the said dues? (b) Whether the nature of debt is a "Financial Debt" as defined under Section 5 (8) of the Code? 15. It appears from the records that the Corporate Debtor nowhere denied the debt amount nor filed any documents to show that the claim is false, but in reply by way of counter the Corporate Debtor simply prayed to dismiss the application without showing any commendable and acceptable reasons. The contentions raised in the reply will not come in the way of the admission of the application in view of the categorical ruling o....
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....erein; III. Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002(54 of 2002); IV. The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor. 19. Notwithstanding the above, during the period of moratorium, the following are also to be strictly followed: - V. That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. VI. That the provisions of Sub-Section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. ➢ That the order of moratorium against the Corporate Debtor shall have effect from the date of pronouncement of this order till the completion of the CIRP or until this Bench approves the resolution plan under Sub-Section (1) of Section 31 or passes an order....