TaxTMI 
TaxTMI 
2022 (8) TMI 321
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....liefs: * Admit the Appeal; * Issue Rule Nisi calling upon the Respondents as to which order dated 20.02.2020 passed by the Adjudicating Authority shall not be quashed being illegal, arbitrary and barred by limitation etc. 3. The Adjudicating Authority, while passing the impugned order dated 20.02.2020 has observed the followings: "We have heard both parties. The applications, documents are perused. The Corporate Debtor, has conveyed the property, under 7 nomination agreement along with the builder dated 31.03.2013 to and in favour of M/s. Jupiter Pharmaceuticals Limited, in other words, the Corporate Debtor having availed the loan for purchase of commercial property from the applicant bank without the knowledge of the bank. illegally has enter into an agreement, with the concurrence of the builders and has conveyed the property to Jupiter Pharinaceuticals Limited. As per the Nomination Agreement dated 31 March, 2013, the total saleconsideration is sum of Rs. 2.26.77.250/- (Two Crore Twenty-Six Lakh Seventy-Seven Thousand Two Hundred and Fifty). Hence, the property which ought to have been created as an equitable mortgage for the loan availed by the Corporate Debtor in favour....
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....ad agreed through the 'Quadpartite Agreement' (for short 'Agreement') dated 29.06.2011 (appearing at page no. 149 -153 of the Appeal paper book vide clause 7 of the said agreement) to pay the dues of the bank in case of default arising out of any event, sale, transfer of the subject property, which was financed by the R2/Bank. c. The Agreement is between M/s. Emerald Mineral Exim Pvt. Ltd (R1), Bengal Shrachi Housing Development Ltd (R3) and West Bengal Housing Infrastructure Development Corporation Ltd (WBHIDCL). d. The clause so stated in the said Agreement for brevity and clarity are produced herein below: Clause 7 - the Builder assures and confirms that the Said Unit as well as the said building and the appurtenant thereto are not subject to any encumbrance, charge or liability of any kind whatsoever and that the entire property is free and marketable. Clause 8- The Builder also confirms that it has taken necessary permissions/approvals/sanctions for construction of the said building from all the concerned competent authorities and the construction of the building as well as the said unit is in accordance with the approved plans and the said unit is meant for residential ....
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....p DLB saved, harmless and indemnified against any loss, damages, expenses, claims, actions which the DLB may suffer based on the representations made by the Borrower and Builder, in this Agreement and believing such representations to be true. Clause 19- The Loan amount alongwith other dues is recallable on demand. DLB may recall the entire Loan from the Borrower on any default or event of Default made by the Borrower, or on the Borrower being declared as insolvent or incapable of handling its affairs or for delays in the completion of the project, which, in the opinion of DLB would affect the repayment of the quality of the security or for any reason which, in the sole discretion of DLB, warrants recall of the Loan amount and other dues. Clause 20- DLB reserves its right to transfer or assign this Agreement in favour of any bank, institutions or body in connection with the Loan granted under the Home Loan Scheme of DLB to the Borrower for the purchase of the said unit to be construed by the Builder. Clause 25- This Agreement shall be governed by any construed in all respects with the Laws in India and the parties hereto hereby mutually agree that any matter or issues arising....
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.... Bank/R2. j. The Bank/R2 has failed to recover its dues from the Builder (R3) before the Adjudicating Authority in CA No. 120 of 2018, later started to illegally recover its dues from the Appellant and R1 Company by filing an application under Section 7 of the Code before the Adjudicating Authority which is illegal, arbitrary and unsustainable in law. k. It was also stated that the Appellant through R1 Company by letter dated 22.04.2013 has informed the Bank/R2 that it has been illegally & deliberately disbursed the partial loan of Rs. 1,34,00,000/- to the Builder (R3) without received the required documents including the NOCs from the Bankers and illegally & fraudulently imposed the loan on the Appellant and R1 Company w.e.f. 01.07.2011 against the provisions given in the Agreement dated 29.06.2011. In spite of repeated request, the builder (R3) or the Bank/R2 have miserably failed to produce the said NoCs before any forum. l. It was also stated that the Appellant has accused the R2/Bank of Foul play & fraud as the process to sale the property was initiated after informing the R2/bank as stated (supra). m. The R2/Bank failed to reply the said letter and so also miserably faile....
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....ssion to mortgage the flats to be built by Builder and supposed to go to R1 Company and the Bank has obtained Corporate Guarantee also. c. It was also stated by the Ld counsel for the R2/Bank that the CD was making payment of the dues in installment alongwith interest to the R2/ Bank till 12.04.2014 and the CD has already paid a sum of Rs. 54,13,999.87 to the R2. Thereafter postdated cheques for repayment of loans started dishonoring or bouncing on its dues which promoted the R2 bank to initiate proceedings under Section 138 of the Negotiable Instrument Act, 1881. d. The R2/Bank has also filed a criminal complaint against the CD and its Directors before the 'Chief Metropolitan Magistrate' in Calcutta. In the meantime, the CD without seeking permission or consent from the R2/Bank executed a 'Nomination Agreement' dated 31.03.2013 alongwith the Builder and transferred the said property/unit in favour of M/s. Jupiter Pharmaceuticals Ltd. The R1 acted in a fraudulent manner of entering into the said 'Nomination Agreement' which was in complete breach on the Agreement dated 29.06.2011. e. It was also stated by R2 that the R1 to repay the loan borrowed from the R2/ bank, the Bank i....
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....r written submissions and we are having the following observations: a. It is not in dispute that the Debt has become NPA on 05.07.2014 and Section 7 application for initiation of 'Corporate Insolvency Resolution Process' has been filed on 11.12.2019 by R2/Bank. b. It is also not in dispute that the bank/ R2 has filed a petition before the Hon'ble High Court of Orissa and the same was transferred to NCLT, Cuttack Bench in terms of Notification dated 07.12.2016 of the Central Government. c. The various lists of dates which is appearing in appeal paper book are enumerated herein below: d. There are several issues involved in this case: i. The Debt was disbursed to the Builder for Rs. 1.34 Crore without receipt of necessary documents including NOCs from the Banks (SBI & UBI) of the Builder. ii. The Bank/R2 has also filed C.A No. 120/2018 before the Adjudicating Authority for recovery a due from the builder. iii. The Bank/R2 has filed multiple proceedings before the DRT-3 Calcutta and simultaneously persuade for recovery against the CD/ Appellant under Section 138 of the Negotiable Instrument Act, 1881 apart from filing criminal complaint which is barred under Section 18 an....
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....f issuing notice of a winding up petition, the company judge is not expected to act mechanically, since winding-tip orders have wide dimensions and fatal consequences. The Judge examines whether a prima facie case has been made out to disclose the respondent company's recalcitrance or inability to pay its debts. The Company Judge thereafter perforce carefully considers the defence put forward by the respondent company. Till this stage, the judge does nothing that is contrary (to) or different (from) adjudication which according to the Concise Oxford Dictionary is to decide judicially regarding a claim, etc. After the introduction of the RDR Act, I find it difficult to accept the preservation of the jurisdiction of the Company Judge to adjudicate upon matters which fall within the purview of the Act. Experience shows that although a clear admission of debt may be absent at the stage of the issuance of notice on the winding -up petition, it may become apparent after the pleadings have been completed. Conversely, there may be an admission of debt, which proves to be palpably illusory after consideration of the defense put forward on behalf of the respondent company. In the first case,....