TaxTMI 
TaxTMI 
2022 (8) TMI 654
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....re, this Bench has jurisdiction to deal with this Petition. 3. The present Petition was filed on 06.08.2019 before this Adjudicating Authority on the ground that the Respondent has defaulted in repayment of loan amount of Rs.228,75,00,000/- (Rupees Two Hundred Twenty-Eight Crore and Seventy-Five Lakh Only) sanctioned by the Petitioner. 4. The total amount claimed to be in default by the Petitioner is Rs.318,91,47,450/- (Rupees Three Hundred and Eighteen Crore Ninety-One Lakh Forty-Seven Thousand Four Hundred and Fifty Only) as on 31.05.2019. The date of default stated to be 24.06.2016. Submissions made by the learned Counsel of the Petitioner. 5. The Petitioner submits that the Respondent had approached the Petitioner for availing a loan for a period of 36 months for its business in the year 2015. On representation made by Respondent, the Petitioner sanctioned a loan amount to the tune of Rs.225,00,00,000/- (Rupees Two Hundred Twenty-Five Crore Only) on 08.06.2015 for a period of 36 months against pledge of shares and optionally fully convertible debentures. Pursuant to which, loan agreement dated 20.06.2015 was entered into. 6. Further, Petitioner states that in terms of the....
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....021 which holds that balance sheets satisfy the test of acknowledgement under section 18 of the Limitation Act, 1963. The present Petition was filed on 06.08.2019 which is within three years from the date of acknowledgement by the Respondent. Submissions made by the Ld. Counsel of the Respondent 12. At the outset, the primary contention raised by the Ld. Counsel of the Respondent is that in terms of the Settlement Agreement dated 01.07.2017 Strategic Credit Capital Private Limited (hereinafter referred to as "SCCPL") and the Respondent entered into the aforesaid agreement with the Petitioner. 13. It is the case of the Respondent that the Petitioner had unconditionally and irrevocably sold, transferred and assigned the loans granted to certain borrowers, to the Respondent and SCCPL. Further, the Respondent submits that the loans sold turned out to be related party transactions and funds siphoning scheme adopted by the Petitioner. 14. Upon unearthing the alleged fraud, multiple litigation proceedings ensued between parties which culminated into a suit before the Hon'ble Bombay High Court Eleos Finvestia Acquisition Trust and Ors. vs Religare Finvest Ltd. & Ors. COMSL/254/2017 (h....
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....ement, the Principal Parties and the Suit Parties, have agreed and undertaken to withdrawn the Other parties Litigations within a period of 15(Fifteen) days from the Execution Date, by filing joint applications duly supported by affidavits (along with the relevant respondents/defendants in such proceedings) for withdrawal of Other parties Litigations and all allegations made therein (whether against RFL or any other third party), before the relevant Courts/ tribunal; along with a copy of this Agreement. The Parties hereby agree that the Parties shall co-operate with each other to enable the withdrawal of the Litigations. It is made clear that on and from the date of the execution of this Agreement, there is/will be no subsisting claim, past, present and future, of the Principal Parties, the Suit Parties and/or the Confirming Parties, against the Second Party, RHC Holding Private Limited (and including, but not limited to its promoters, shareholders, associates, affiliates and any members, employees, agents, directors, officers, etc. of the foregoing and/or RHC Holding Private Limited), Mr. Malvinder Mohan Singh, Mr. Shivinder Mohan Singh, Religare Enterprises Limited, Mr. Sunil God....
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....y members, employees, agents, directors, officers, etc. of the foregoing and/or of the Parties and those of their affiliates claiming under them) that, on and from the Execution Date, this Agreement and the rights and obligations assumed under it shall constitute full and final settlement of all Litigations and other issues/disputes, if any, between the Parties (and including, but not limited to, their respective promoters, shareholders, associates, affiliates and any members, employees, agents, directors, officers, etc. of the foregoing and/or of the Parties). Each of the Principal Parties, Suit Parties and the Second Party, which are parties to the Litigations, hereby waive and/or forego their contentions and actions initiated against each other Party and against RHC Holding Private Limited (and including, but not limited to its promoters, shareholders, associates, affiliates and any members, employees, agents, directors, officers, etc. of the foregoing and/or RHC Holding Private Limited), Mr. Malvinder Mohan Singh, Mr. Shivinder Mohan Singh, Religare Enterprises Limited, Mr. Sunil Godhwani and/or Radha Soami Satsang Beas. The Parties further agree that the various actions to be ....
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....The said suit sought the following reliefs: i. Decree in favour of the Respondent and against the Petitioner declaring that the Respondent is discharged of all obligation and/or liabilities, whatsoever arising out of the settlement. ii. Agreement in view of the fact that the Petitioner has acted in a manner which resulted in frustrating the purpose of the settlement agreement and making it impossible for Respondent to perform. iii. Specific performance of the Settlement Agreement by the Petitioner, directing the Petitioner to comply with the terms of the Settlement Agreement and withdraw and/or appropriately amend all notices/utterance/litigations including inter alia those to the Income Tax Authority and Reserve Bank of India. iv. Specific performance of part of the settlement agreement by the Petitioner, directing the Petitioner to release all collaterals as per the agreement to the Respondent. v. Directing the rendition of accounts, the Petitioner has made from their conduct including that from the preferential issue. 20. Reliance is placed by the Respondent on Phoenix Arc Private Limited vs. Spade Financial Service Limited, 2021 (3) SCC 475 wherein it is held that ....
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....e Code. In support of its Contention the Petitioner has cited E.S. Krishnamurthy vs Bharath Hi-Tecch Builders (P) Limited 2022 3 SCC 161 31. On a bare reading of the provision, it is clear that both, Clauses (a) and (b) of sub-Section (5) of Section 7, use the expression "it may, by order" while referring to the power of the Adjudicating Authority. In Clause (a) of sub-Section (5), the Adjudicating Authority may, by order, admit the application or in Clause (b) it may, by order, reject such an application. Thus, two courses of action are available to the Adjudicating Authority in a petition under Section 7. The Adjudicating Authority must either admit the application under Clause (a) of sub-Section (5) or it must reject the application under Clause (b) of sub-Section (5). The statute does not provide for the Adjudicating Authority to undertake any other action, but for the two choices available. 32. In Innoventive Industries (supra), a two-judge Bench of this Court has explained the ambit of Section 7 of the IBC, and held that the Adjudicating Authority only has to determine whether a "default" has occurred, i.e., whether the "debt" (which may still be disputed) was due and re....
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....and corporate debtor within 7 days of admission or rejection of such application, as the case may be. [...] 30. On the other hand, as we have seen, 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 is of no matter that the debt is disputed so long as the debt is "due" i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise." (emphasis supplied) 24. Therefore, the Petitioner states that from a bare perusal of clause 3.7, clause 9.2 and schedule C, the obligation of the Respondent to pay was continuing. The Respondent has not discharged its liability under the loan agreement. Findings 25. Heard the Ld. Counsel for the parties and perused the records. 26. The Respondent in its reply alleged that the Petitioner had unconditionally and irrevocab....
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....oan agreement dated 20.06.2015. 31. In light of the above circumstances we hold that aforesaid acknowledgment meets all the essential ingredients of Section 18 of the Limitation Act,1963. Therefore, the debt is within the period of limitation. 32. Further, clause 3.4 and 3.7 of the Settlement Agreement stipulates that "3.4 The principal parties further undertake to procure, on best effort basis, that amounts aggregating to at least Rs.400,00,00,000/- (Rupees Four Hundred Crores Only) ("Realizable Amount") are realized by collection of amounts repayable/recoverable/receivable from the borrowers, within a period of 9 (nine) months from the Execution Date". "3.7 The obligation of the Principal Parties to pay the entire Second Party Dues shall be a continuing obligation and the Principal Parties shall not be discharged of their obligations to Second Party until the entire Second Party Dues are paid in full, including by way of collections in the Escrow Account, and/or by disposal of collaterals listed in Schedule C as contemplated in Clause 7.1(iv)." Therefore, the Respondent is under a continuing obligation to pay the dues to the Petitioner. 33. The application made by the F....
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....eriod; (ii) That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any sectoral regulator; (d) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. (e) Public announcement of the CIRP shall be made immediately as specified under section 13 of the IBC read with regulation 6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (f) Mr. Suresh Baburao Shingte, having Registration No. IBBI/IPA-001/IP-P00428/2017-18/10751,having registered email id [email protected] is hereby appointed as Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the IBC. The fee payable to IRP or, as the case may be, the RP shall be compliant with such Regulations, Circulars and Directions issued/as may be issued by the Insolvenc....