TaxTMI 
TaxTMI 
2021 (11) TMI 189
X X X X Extracts X X X X
X X X X Extracts X X X X
....4,11,30,937/- (Rupees one hundred forty-four crore eleven lakh thirty thousand nine hundred thirty-seven only) which includes: a) Total payable without TDS Pending of Rs. 133,02,26,498/- (Rupees one hundred thirty three crore two lakh twenty-six thousand four hundred ninety eight only) and b) TDS Pending of Rs. 11,09,04,439/- (Rupees eleven crore nine lakh four thousand four hundred thirty-nine only) 3. The Date of Default as mentioned in the Petition is 09.03.2020. The Petition is filed on 10.11.2020. 4. The case of the Financial Creditor is as under: a) In March 2017, the Corporate Debtor approached the Financial Creditor seeking total loan facilities for an amount of Rs. 283 crore. The Financial Creditor has sanctioned loan facilities to the Corporate Debtor in the following ways: i) Loan Account No. S000239814, Loan Agreement dated 14.03.2017 for an amount of Rs. 150,00,00,000/- (Rupees one hundred and fifty crore only) has been disbursed on 30.03.2017. The entire amount of Rs. 150,00,00,000/- has been disbursed on 30.03.2017. The Loan Agreement is placed at pp. 34-71 as Annexure '2' of the Petition. ii) Loan Account No....
X X X X Extracts X X X X
X X X X Extracts X X X X
....led on 18.09.2020 between the Financial Creditor and the Corporate Debtor. Copy of the said Arbitration Petition is annexed as Exhibit 'B' of the reply. The Arbitration Petition is filed on the same subject matter against the same party and on the same loan agreement, mortgage deed, inventory offered as security and the same has not been disclosed by the Financial Creditor. The Financial Creditor has obtained interim orders thereunder. Therefore, the Petition filed on 10.11.2020 by the Financial Creditor under I&B Code, 2016 is not maintainable. b) The Arbitration Proceedings were filed on 18.08.2020 i.e. prior to the filing of the present Petition under I&B Code, 2016 and the same is pending before the Hon'ble Delhi High Court. Order dated 22.09.2020 (Exhibit 'D'), 28.09.2020 (Exhibit 'E'), 23.11.2020 (Exhibit 'F') and 02.02.2021 (Exhibit 'G') have been passed in the OMP (I) (COMM) No. 298 of 2020. The Corporate Debtor has filed its reply to the said Arbitration Petition on 28.10.2020, the Corporate Debtor has filed their Affidavit in reply dated 28.10.2020 opposing the Arbitration Petition and denying any liability in respect o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppressed and not disclosed the correct position of security offered under the loan documents and the security were modified from time to time inter alia that the Financial Creditor has issued NOC/release of charge for 59 units/apartment for carpet area 54,909 sq. ft. from the total 150 units in Phase-I of the Project in favour of its sister concern/group company Indiabulls High Yield Fund and Indiabulls India Opportunities Fund. g) The Corporate Debtor is carrying out the development of large slum property known as "Anantya" at Chembur, Mumbai spread over 40 acres with development potential of 32 lakh sq. ft. approx comprising of land with structures standing thereon being Survey No. 103, CTS No. 200 and admeasuring 53,192.35 sq. mtrs. or thereabouts at village Wadhavali, Taluka Kurla, Chembur, Mumbai - 400074. The property was declared a slum. The Development Agreement was executed whereby the Corporate Debtor undertook the re-development of the property under Slum Rehabilitation Scheme so as to provide permanent alternate accommodation to the respective member in the Slum Rehabilitation building. The development in Phase -I of the project comprises of 6 Rehab Towers and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntures on the basis of NOC dated 23.10.2018 issued by Indiabulls Housing Finance Ltd. to Indiabulls High Yield Fund and Indiabulls Opportunities Fund. k) The Corporate Debtor submits that the assets offered for the loan of Rs. 283 crore has remained intact and are available which is adequately safeguarded with the same available security as was give initially at the time of sanction of loan. The assets available as security are mote that 5 times than the outstanding principal amount. The claim/demand for payment is for inflated amount which is in the nature of penalties under various heads i.e. Non-Security Creation charges, foreclosure charges, default interest, accrued 2% interest etc. which is unjustified in the facts of this case. l) The Corporate Debtor further submits that the Corporate Debtor the claim raised in the present Petition is incorrect, disputed, challenged and that there is existing dispute to the alleged debt raised in the present Petition which is demonstrated as follows: i) Loan Account No. S000239814 aggregating Rs. 23,54,21,344/- ii) Loan Account No. S000239815 - Rs. 6,75,40,258/- and iii) The Corporate Debtor has ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d a token payment to show bonafides so that restructuring proposal can be considered and implemented, therefore part payment was made with a request to proceed and formalise the documentation for restructuring the payment of loans and it was inter alia requested that "Prioritise the payments received towards adjustment and settlement of dues which are subject matter of court proceedings and take all suitable steps towards settlement and withdrawal of legal proceedings.". Copy of the said letter dated 08.10.2020 is annexed as Exhibit 'J' of the reply. o) The Corporate Debtor dispute the claim for SCC charges and submit that there is no default in creation of security which is demonstrated as follows: i) Contemporaneous material/correspondence/emails to show that the borrower was ready to offer security and the delay in security attributable to the lender therefore this levy is unfair and arbitrary. ii) Non-Security Creation charges for first loan Rs. 43,50,63,963/- and for second loan Rs. 37,55,94,241/- iii) The Non-Security Creation charges levied by Indiabulls pertain to mortgage deed. The sequences of events from 29.12.2016 when the fir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....value with the intention of obstructing or delaying the claim of the Financial Creditor and that the assets/properties/receivables of the Corporate Debtor are secured. Hence the Corporate Debtor has pre-existing dispute against the Financial Creditor in respect thereof; therefore, the present Petition is not maintainable and ought to be dismissed with exemplary costs. 6. The Learned Counsel for the Financial Creditor has filed its written submissions and submitted as under: a) The Financial Creditor has extended loan facilities to the tune of Rs. 2,83,00,000/- (Rupees two hundred and eighty-three crore) has been sanctioned for construction and/or development of housing/residential projects for a tenure of 60 (Sixty) months. Out of the total sanctioned amount, an amount of Rs. 2,81,40,00,000/- (Rupees two hundred and eighty-one crore forty lakh rupees) has already been disbursed by the Corporate Debtor. Disbursement Memos at Annexure '4' and Statement of account showing disbursement of the amounts under the Loan Facilities at Annexure '5'. This undisputedly constitutes a "financial debt" as defined under Section 5(8) of the IB Code. b) In terms o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... made by him nor he has disputed the debt amount claimed by the Financial Creditor in his Petition. There is no dispute relating to the debt and default between the Financial Creditor and the Corporate Debtor. b) With respect to the contentions of the Corporate Debtor regarding the pending Arbitration Proceeding, it is well settled law that the pending Arbitration Proceedings has no impact on the IBC proceedings under section 7 of the Code. c) It is pertinent to note both the Arbitration and Conciliation Act, 1996 and the Code are special laws. The Code was enacted to consolidate and amend the laws relating to insolvency resolution of corporate persons. Whereas, Arbitration and Conciliation Act, 1996 was enacted to consolidate and amend the law relating to domestic arbitration. Thus, both are special statues which operate different area of law. The proceedings under the IBC are to initiate CIRP of the Corporate Debtor, whereas the Arbitration proceedings are intended to recover the dues under the contract. Therefore, there is no overlapping of procedure/substantive law with reference to Arbitration or initiation of CIRP. 8. In the present case though t....