TaxTMI 
TaxTMI 
2021 (5) TMI 900
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....ejected by the RP and IA 3125/2020 seeking directions against the RP and the CoC not proceed with the CIRP pending disposal of IA 161/2020. 2. It is a case wherein CP 654(PB)/2009 was filed by a Financial Creditor namely M/s. Vishal Fabrics along with other Financial Creditors against the Corporate Debtor, and that was admitted on 21.10.2019. In pursuance thereof, on the publication made on 22.10.2019 for submission of claims, the claims were received, and CoC was constituted and then first CoC was convened on 22.11.2019, second CoC was constituted on 11.12.2019. 3. Upon invitation of claims, the applicant ('IIFL') filed its claim for an amount of Rs. 134,15,62,129 before the IRP, responding to the same, the IRP on 13.11.2019 sent an email to IIFL stating that the claimant's claim being under verification, IIFL should submit documents to substantiate its claim. Accordingly, IIFL, to prove its claim, submitted all relevant documents including loan agreement, statement of account, deed of guarantee etc. to the IRP, whereas the IRP, instead of admitting the claim looking at the documents supplied, sent another email on 18.11.2019 stating that he required more time to ver....
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.... possession of Tower-B situated at AVJ Heights, C-602, Plot No. 12/2, Sector Zeta-I, Greater Noida, Uttar Pradesh on the ground that the property belonging to the CD, IIFL counsel has categorically mentioned though the above said property lying in the possession of IIFL through SARFAESI proceedings, IIFL Counsel has conceded to hand over the possession of the said asset because IBC proceeding prevails over SARFAESI proceeding. The only grievance of IIFL is that the RP has rejected to consider its claim based on the due payable by the CD to IIFL. With regard to possession of the above said asset, IIFL has not raised serious contention to keep the property in their possession, therefore this issue does not warrant us to deal with except giving a direction to IIFL to handover the possession of the said asset to the CD. Accordingly IA-2205/2020 filed by the RP is hereby disposed of directing IIFL to hand over possession of the asset of the CD remained in the possession of it within 15 days from the date of this order. 11. Another issue that requires consideration of this Bench is as to whether rejecting the claim of IIFL by the RP is in accordance with law or not. 12. Before coming t....
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.... Rs. 85 Crore to reduce the then existing liability of its three loans accounts, IIFL produced true copies of transfer of this fund from the account of IIFL to the escrow account maintained by the Corporate Debtor, then on the same day this money was again transferred to the loan accounts of the corporate debtor as shown in the table above. To prove this money has been adjusted against these three loan accounts, IIFL has also placed true copies of those accounts. To show this money has been credited against loan accounts on 30.09.2017, IIFL has annexed those copies as Annexure-D to F. 15. For the residual dues in the three loan accounts, IIFL, through SAERFASI, sold the property of M/s. Best View Properties Limited situated at Anand Vihar mortgaged as security. A sum of Rs. 2,50,89,128 having remained as surplus after adjustment of sale produce against the residual dues relating to three loan accounts, the said surplus amount was credited in the loan account of CL288 i.e. in relation to Rs. 85 crores loan taken by Vinay Jain. For the loan account of CL288 of Rs. 85 crores having remained unpaid, as on 20.10.2019, the dues outstanding in the loan account has become Rs. 134,15,62,12....
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....ihar property of M/s. Best View Properties Ltd., some more interest was accrued over the balance amount. On sale of the said property, the term loan of those three accounts closed and the surplus amount of Rs. 2,50,89,128 was appropriated to CL288 loan account (Rs. 85 crores loan amount taken by Vinay Jain for the regularizing the earlier three loan accounts). 19. Since it is an admitted fact that three term loans were availed by the CD by mortgaging the property of the CD, and since the applicant has supplied every detail as to how earlier three accounts were cleared and how and for what purpose Rs. 85 crores was given to Mr. Vinay Jain, the RP ought to have verified as to how payment was made towards those three term loans. But the RP has more relied upon the FIR copy given by Vinay Jain who happened to the author of taking this loan for the benefit of the CD. When the applicant company has categorically mentioned as to how Rs. 85 crores was taken and as to how guarantee deed was executed, the RP should have looked into the bank accounts and loan accounts placed by the applicant company. The RP should not have explained away this issue simply by saying that he cannot adjudicate ....
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....or. Moreover herein this case, Vinay Jain admitted adjustment, by this adjustment, the corporate debtor three loan accounts were cleared. Procedure is a means to reach to the ends of justice, contextual understanding of procedure is required. Though money has gone for the benefit of the Corporate Debtor, since it is shown as the guarantor, it is obvious that this liability will not be shown as long term liability. At the same time it is evident that Rs. 85 Crore liability has reduced from its three term loan accounts. In the light of these facts, we are at a loss to understand as to why the RP has not taken these aspects into consideration while rejecting the claim of IIFL. 22. RP says that the FIR filed by Mr. Vinay Jain having categorically mentioned that since Vinay Jain was in judicial custody from 23.03.2017 to 24.10.2017 and Vipin Aggarwal was in judicial custody from 23.03.2017 to 07.11.2017, the disbursement of loan on 04.10.2017 and execution of loan agreement on 01.11.2017 cannot be relied, therefore the applicant shall not be admitted. He further says that RoC records discloses recording of charge in relation to three loans availed by the CD, but not in relation to Rs. ....
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....inay Jain remained in judicial custody up to 24.10.2017. 27. Here, the Applicant has filed the financial contract disclosing that the Suspended Director Mr. Vinay Jain executing a loan agreement in favour of the Applicant herein, the Applicant disbursing the loan amount to the ESCROW Account, thereafter appropriating the said amount towards the earlier loan accounts which became irregular and also documents reflecting sale of the property mortgaged by Best View Properties Limited. Moreover, the Suspended Directors of the Corporate Debtor have not denied anywhere about taking amounts through three loan accounts prior to availing this loan by the Suspended Director of the Corporate Debtor and depositing this loan amount of Rs. 85 Crore in the ESCROW Account, thereafter adjusting the same against the previous three loan accounts. All these transactions having remained apparent on record, we wonder how this RP has ignored all this material establishing financial contract, disbursal of the amount, thereafter signing memo of deposit of title deeds for creation of equitable mortgage. 28. With regard to obligation of guarantee, there is a separate guarantee deed the corporate debtor taki....