TaxTMI 
TaxTMI 
2021 (8) TMI 1134
X X X X Extracts X X X X
X X X X Extracts X X X X
....he business of providing financial assistance to its customers based on their requests. The Respondent herein is involved in the business of Real Estates, Civil Constructions and other allied activities. He submitted that in the year 2015, the Respondent's Company represented by its Directors Mr. A. Francis and Mrs. A. Jean Fleming Rose, approached the Appellant seeking a loan of Rs. 50,00,000/-(Rupees Fifty Lakhs only), to meet its Business commitments and to develop an immovable property situated at Srirangam, standing in the name of its Managing Director, Mr. A. Francis. The Respondent and its Directors had agreed to repay the aforesaid loan amount within a period of 1 (one) year, along with interest at the rate of 18% per annum. A deed of Mortgage/Loan Agreement dated 20.10.2015 was also executed by Mr. A. Francis, the Managing Director of the Respondent pertaining to the above said immovable property at Srirangam in favour of the Appellant and the said document has been registered on the file of Sub-Registrar, Srirangam, vide document No. 3034 of 2015. 2. The Appellant had transferred the loan amount to the Bank account of Mr. A. Francis, Managing Director of the Respondent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9 does not create or alter any right or title over any immovable property and as such is not compulsorily registerable under Section 17 of the Registration Act, 1908. Hence, the finding of the Hon'ble Adjudicating Authority in rejecting the MoU dated 05.07.2019 is baseless and unsustainable. 7. The Learned Counsel relied upon the Judgment of the Hon'ble Supreme Court in Laxmi Pat Surana V. Union Bank of India & Anr., in Civil Appeal No. 2734 of 2020 dated 26.03.2021. Respondents Submissions': - 8. Sri. Karthik Seshadri, Learned Counsel representing Mr. Abhinav Parthasarathy, Counsel for the Respondent, submitted that the Appellant has filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, on the strength of an unregistered MoU dated 05.07.2019. He submitted that the said unregistered MoU is a compulsorily registerable document as per Section 17 of Registration Act, 1908 on the premise that the said unregistered MoU purports to create, declare and assign a right to an immovable property as and when the Respondent herein defaults in settling the loan as agreed. Hence, it is reasonable to comprehend that a charge has been created on a property of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f contract between the Appellant and the Respondent regarding disbursement of Loan into the accounts of the Respondent and that the said allegation of disbursement is not corroborated by reflection in statement of accounts of the Respondent. Further, the Learned Adjudicating Authority rightly held that the Appellant has not serviced interest from the account of the Respondent and the Appellant has failed to prove the "Debt and Default". In view of the submissions, as made above the Learned Counsel for the Respondent prayed this Bench to dismiss the Appeal as devoid of merits. Analysis/Appraisal: - 13. Heard the Learned Counsel appeared for the respective parties, perused the pleadings documents and the 'Citation', relied upon by them. The Bone of Contention in this Appeal is whether the MoU Dated 05.07.2019 is admissible and whether the same can be taken into consideration for the purpose of the Loan obtained by Mr. A. Francis, Managing Director of the Respondent Company and whether the Respondent Company is liable for the said loan obtained by Mr. A. Francis. 14. The Learned Adjudicating Authority dismissed the application filed by the Appellant seeking initiation of CIRP....
X X X X Extracts X X X X
X X X X Extracts X X X X
....25.2% per annum within 45 days from the said MoU. However, the Learned Counsel failed to produce any document showing that the Appellant transferred the loan amount in the account of the Respondent Company. From the statement of accounts of the Bank, it is clear that the loan amount was transferred to Mr. A. Francis, Director, in his personal capacity and from the deed of mortgage it is evident that the loan is required for his business as well as family needs. On the other hand, the Learned Counsel for the Respondent objected to the MoU dated 05.07.2019 on the ground that the said MoU is not a registered document as observed by the Learned Adjudicating Authority. Further the Learned Counsel also submitted that "The Appellant and four other entities have not signed the other pages of the MoU, therefore, the Learned Counsel expressed the genuineness of this document. This 'Tribunal' is of the view that the said document cannot be taken into consideration for the purpose of initiation of Section 7 of the Insolvency and Bankruptcy Code, 2016, by the Appellant. When the application filed before the Adjudicating Authority, the Respondent filed their Counter Affidavit to the application ....