TaxTMI 
TaxTMI 
2018 (2) TMI 2046
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....ed the principal amount of Rs. 19,60,00,000/- plus agreed interest which comes to Rs. 22,74,42,271/- as on 09.11.2016. The basis of the Application are that the Financial Creditor has provided loan facility to the Corporate Debtor vide Loan Agreement dated 09.06.2010. The copy of the loan agreement is placed at pages 39 to 56 of the typed set filed with the Application. 3. Initially, the Loan Agreement was entered into between the Financial Creditor and Corporate Debtor with the condition that EMI of Rs. 1,03,83,500/- for 21 months starting from 15.11.2010 will be paid by the Corporate Debtor. But later on, a communication has been sent by the Corporate Debtor to the Financial Creditor dated 30.11.2011, the copy of which is placed at page 74 of the Application, wherein it has been projected that the Corporate Debtor is not able to pay such high EMI of Rs. 1,03,83,500/-, and a request was made to restructure the terms of loan and increase the repayment period to 41 months so that the EMI amount could be reduced. It is also mentioned in the said communication that the total amount due to the Financial Creditor as on 30.11.2011 was Rs. 15,16,47,637/-, which includes outstanding princ....
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....nd Corporate Debtor and perused the record. 9. The Counsel for the Financial Creditor during the course of arguments has supported the contents of the Application along with record placed on file. However, in reply, the Counsel for the Corporate Debtor stated that there is dispute as to the amount claimed by the Financial Creditor. The basis of the dispute as per the submissions of the Counsel for the Corporate Debtor is that the Financial Creditor has been charging exorbitant interest i.e., 36% p.a., whereas the agreed rate of interest is 10% IRR, and there are variations about rate of interest as claimed by the Financial Creditor. 10. The Counsel for the Corporate Debtor has referred to the Order that came to be passed by the Arbitral Tribunal on 27.06.2017 wherein it has been recorded that "As per the sanction letter agreed rate of interest was 10% but in the agreement the Claimants have filled 14.46%. However, the Claimants have denied the same and submitted that interest is calculated @ 10% by way of their affidavit". However, the Arbitral Tribunal, after making preliminary observation, has under para 8 concluded that unless and until all the documents relied upon by both th....
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....n its rights to have it executed the decree obtained from the Civil Courts before appropriate Civil Courts. However, in this matter, the Financial Creditor is not relying upon any decree passed by the Civil Court. Therefore, the authority referred to by the Counsel for the Corporate Debtor cannot be relied upon in the facts and.circumstances of the case. 14. The Counsel for the Financial Creditor rebutted the arguments of the Counsel for the Corporate Debtor by making reference ruling of the Hon'ble NCLT given in "Annapurna Infrastructure Pvt. Ltd. & Ors. Vs. Soril Infra Resources Ltd.", dated 29.08.2017, wherein under para 33, it has been observed by their Lordships that "Insolvency Resolution Process is not a money suit for recovery nora suit for execution of any decree or award as distinct from Section 35 of the Arbitration Act, which relates to execution of an Award". By concluding the reasoning their Lordships observed that "the question of availing any effective remedy or alternative remedy, in case of default of debt for an Financial Creditor, as held by the Learned Adjudicating Authority, is not based on any sound principle of law". For the said reasons, the Hon'ble NCLAT ....
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....p Hon 'ble Justice R.F. Nariman, under para 27 of the Order laid down that "for the meaning of "debt", we have to go to Section 3(11), which in turn tells us that a debt means a liability of obligation in respect of a "claim" and for the meaning of "claim", we have to go back to Section 3(3) which defines "claim" to mean a right to payment even if it is disputed." The Hon'ble Justice further elaborated the same under para 30 of the judgement by observing that, "in the case of a corporate debtor who commits a default of a financial debt, the Adjudicating Authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred". It has further been observed that, "it is of no matter that debt is disputed so long as debt is "due" i.e. payable unless interdicted by some law or yet become due in the sense that it is payable at some future debt. " 18. In the light of the discussion made above, the arguments submitted by the Counsel for the Corporate Debtor are devoid of merits and stand rejected. Having examined the pleadings, documentary evidence placed on record by the Counsel for the Fina....