TaxTMI 
TaxTMI 
2021 (5) TMI 728
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..../-, and the amount claimed to be in default is Rs. 39,56,96,676/- including interest @ 18% per annum. The date of default is stated to be 09.02.2020. BRIEF HISTORY OF THE CASE 3. The Petitioner is a company incorporated under the Companies Act, 2003, Registration No. U15549PN2018PTC177071 and The Corporate Debtor is a company incorporated under the Companies Act, 2003, Registration No. U15424PN2010PLC137545. 4. The Corporate Debtor approached the Petitioner for the sale of assets of his Sugar Plant, Distillery and Co-Generation Plant and lands owned by various parties due to Financial Crunch. 5. Then the Petitioner issued the letter of intent dated 15.08.2018 and the Corporate Debtor accept the proposal of the Petitioner. 6. Thereafter the Petitioner and Corporate Debtor approached the Samarth Sahakari Bank Ltd. and informed them about the proposed takeover of assets of the Corporate Debtor by the Petitioner. The Petitioner requested the bank to disburse the Short-Term Loan amounting to Rs. 8,00,00,000/- to the transport and harvesting contractors of the Corporate Debtor. 7. The Financial Creditor and the Corporate Debtor issued a Corporate Guarantee Bond dated 27....
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....d amount has to be refunded to the Petitioner in case of rejection of the OTS proposal of cancellation of such understanding. 16. The Petitioner vide email dated 08.01.2019 sent the demand letter received from the M/s. Vasantdata Sugar Institute for payment of its outstanding dues to the Corporate Debtor then the Corporate Debtor requested the Petitioner to clear the dues amounting to Rs. 9,18,353/-. 17. On 11.01.2019 the Petitioner requested the Department of promotion of industry and internal trade secretariat for industrial assistance to amend the IEM issued to the Corporate Debtor by amending the name and address of the Corporate Debtor with the name and address of the Petitioner. On 22.02.2019 the Department of promotion of industry and internal trade secretariat for industrial assistance issued the memorandum regarding the said amendment to the dept. of food and public distribution. 18. The Corporate Debtor failed to get the No objection certificate from all the bankers till December 2019. Due to this Petitioner had to reconsider its decision of acquiring the assets of the Corporate Debtor and therefore, the Petitioner has no other option left but to terminate the sa....
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..../- payable to M/s. Vasantdata Sugar Institute was part of the consideration. 28. The Corporate Debtor had every intention to complete the transaction and took every effort to do so, and the Corporate Debtor even revised the OTS offers that were put forth before the banks but due to the non-availability of funds, the Corporate Debtor requested banks for additional time so that the Petitioner would arrange the funds. 29. The amount claiming in the Petition was for the part payment towards the consideration for purchasing the assets of the Corporate Debtor and is not a loan as falsely claimed by the Petitioner. 30. The Corporate Debtor submits that the Petitioner has failed to prove that "Default" as stated in the Code and claim of Petitioner cannot be called as "Financial Debt". Therefore, in the light of the above it is submitted that there has not been any default on part of the Corporate Debtor and no dues are due and payable to the Petitioner by the Corporate Debtor. FINDINGS:- 31. This Sec. 7 Application has been filed by the Petitioner, M/s. Autade Sugar Pvt. Ltd. against the Corporate Debtor M/s. Febtech Sugar Ltd. for a principal amount of Rs. 30.34 crores and ....
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....re demanding a higher amount by way of settlement from the Corporate Debtor. Since the Corporate Debtor could not arrive at a settlement with the Bank, it could not obtain an NOC from the Banks. The obtaining of an NOC by the Corporate Debtor from the Banks to which the assets were hypothecated was the primary and only major condition before executing the sale transaction as per the Agreement arrived between the Parties. It is for the non-obtaining of NOC by the Corporate Debtor that the sale transaction could not be executed and, therefore, the agreement was terminated as per the relevant clause of the agreement and demand was raised vide letter dated 09.01.2020 for paying the default amount along with interest within 30 days. The Bench also notes that the Corporate Debtor in its financial statement has recorded and admitted that it to be a financial debt. In this regard, the balance sheet of the Corporate Debtor has been produced by the Petitioner which treats this loan as a short-term borrowing. "Note No. 6 SHORT TERM BORRO WINGS (1) Disclosure pursuant to Note No. 6(D)(a) of Part I of Schedule III to the Companies Act, 2013. The Bench further notes that eve....
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....es the argument of the Corporate Debtor that the loan be treated as an operational debt. 40. The other point that it is not a financial debt in terms of sec. 7 it is clear from the relevant paragraphs of the agreement that the parties agreed to treat the amount as a loan and that at 18% interest would be payable on them. 41. The Bench has noted the fact that the Corporate Debtor himself has admitted that it is a short-term loan in its Balance sheet and as an Inter Corporate Loan by way of Independent Auditor's Report which constitutes an integral part of the Annual Report of the Corporate Debtor Company. This Bench has also dealt this matter in all details at Paras 33 and 34 above which conclusively proves that it is an Inter corporate Loan which has been admitted by the Corporate Debtor and has been reflected as such in the Balance Sheet and the Annual Report of the Corporate Debtor. Therefore, the Bench negates the contention of the Corporate Debtor that it is not a financial loan but an operational transaction or advance received for the sale of assets. 42. While on this, the Bench would like to refer to a similar case before the Hon'ble NCLAT in the matter of M....
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....ention of the Corporate Debtor fails. 15. ...... 16. In view of the discussions in the foregoing paragraphs this Adjudicating Authority is satisfied that the Petitioner herein is a Financial Creditor to the Corporate Debtor. The Corporate Debtor has not disputed the receipt of the impugned amounts including interest, but has only taken a legal argument, which has found to be not acceptable by this Adjudicating Authority. On the other hand, the Petitioner has established the existence of a Financial Debt which the Corporate Debtor was liable to pay, but failed to do so. Considering these facts and circumstances, this Adjudicating Authority is inclined to admit the instant Petition." (Emphasis Supplied) Before Hon'ble NCLAT in the matter the Corporate Debtor had inter alia contended that the First Corporate Debtor does not fall within the meaning and definition of the Financial Creditor as it did not disburse the money against the consideration of time value of money, that the word 'disbursed' assumes importance which the Adjudicating Authority had failed to appreciate that at the time of disbursal amount was not paid for the time value of money be....
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....The IRP proposed by the Financial Creditor, Mr. Ritesh R. Mahajan, having registration No. IBBI/IPA-002/IP-N00048/2017-18/10132, Email id: [email protected], is hereby appointed as Interim Resolution Professional to conduct the Insolvency Resolution Process. 47. Having admitted the Petition/Application, the provisions of Moratorium as prescribed under Section 14 of the Code shall be operative henceforth with effect from the date of order and shall be applicable by prohibiting institution of any Suit before a Court of Law, transferring/encumbering any of the assets of the Debtor etc. However, the supply of essential goods or services to the "Corporate Debtor" shall not be terminated during the Moratorium period. It shall be effective till completion of the Insolvency Resolution Process or until the approval of the Resolution Plan prescribed under Section 31 of the Code. 48. That as prescribed under Section 13 of the Code on the declaration of Moratorium the next step of Public Announcement of the Initiation of Corporate Insolvency Resolution Process shall be carried out by the IRP immediately on the appointment, as per the provisions of the Code. 49. That the Interi....