TaxTMI 
TaxTMI 
2022 (9) TMI 1219
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....solution Professional for adjudicating of the claim of the Appellant. Aggrieved by the order dated 21.04.2022, this Appeal has been filed. The brief facts of the case necessary to be noted for deciding this Appeal are: (i) On 01.06.2018, the Appellant sanctioned a loan amount of Rs.100 Crores to the Corporate Debtor (Anuradha Real Estate Developers Pvt. Ltd.). The Loan Agreement as well as the Registered Mortgage was entered on 06.06.2018. Between 11.06.2018 to 10.04.2019, Appellant disbursed total amount of Rs.32.50 Crores to the Corporate Debtor. (ii) The Loan Account of the Corporate Debtor was declared NPA on 01.11.2018. On 08.11.2019, the Appellant issued loan recall notice to the Corporate Debtor. Appellant had issued notice under Section 13(2) of the SARFAESI Act, 2002 dated 05.08.2020 calling upon the Corporate Debtor to make payment of Rs.41,78,22,974/- as on 31.07.2020 alongwith the interest. The Appellant had issued a possession notice and taken symbolic possession under Section 13(4) of the SARFAESI Act, 2002 on 05.12.2020. (iii) On 07.06.2021, the Adjudicating Authority approved the Resolution Plan submitted by the Appellant, Piramal Capital ....
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....essional was not based on any cogent material. The Adjudicating Authority relied on the Transaction Audit Report dated 09.03.2022 which Transaction Audit Report had recorded conclusion that it is not possible to comment on the fact as to whether the loan of Appellant has been discharged. The Adjudicating Authority relied on the internal correspondence between the Corporate Debtor and its sister concern 'RDPL' which were self-serving letters prepared by same Promoters of both entities i.e. the Corporate Debtor and RDPL, which letters were not even marked to the Appellant. The Adjudicating Authority relied on unaudited draft Book of Accounts of the Corporate Debtor as on 31.03.2021 where the loan of the Appellant was mischievously not shown whereas the said loan was duly reflected in the Balance Sheets of the Corporate Debtor for the year 2018-19 and 2019-20. The conclusion drawn by the Adjudicating Authority that the amount laying in the account of DHFL were adjusted towards the loan to the Corporate Debtor were not based on any material and was perverse finding. The Corporate Debtor failed to prove that the loan given to it was discharged by any means, hence, the rejection of the c....
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....has been laid on letter dated 18.02.2021 issued by RDPL to the Corporate Debtor informing that the credit amount of Rs.38,51,98,790/- which is laying in the account of DHFL can be adjusted unconditionally towards the loan amount availed by the Corporate Debtor of Rs.32.50 Crore. By the letter details of the account and transaction dated 19.11.2018 was communicated. Learned counsel for the Resolution Professional submits that the Resolution Professional being unable to verify the claim of the Appellant had filed the I.A. 308 of 2022 before the Adjudicating Authority requesting the Adjudicating Authority to adjudicate the claim of the Appellant. The Adjudicating Authority has considered all the aspects of the matter and come to the conclusion that loan given to the Corporate Debtor was repaid by RDPL, hence, the claim of the Appellant could not be admitted. 4. We have considered submissions of learned counsel for the parties and perused the record. 5. From the pleadings of the parties and material on the record following facts are undisputed: (i) The Appellant sanctioned a loan of Rs.100 Crore to the Corporate Debtor on 01.06.2018. (ii) The Appellant disbursed....
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....e Debtor and its sister concern RDPL establish the fact that RDPL has provided financial assistance to the Corporate Debtor and consequently, the amounts lying in the account of DHFL were adjusted towards the repayment of the loan of the Corporate Debtor. This Bench takes on record the internal correspondence between Corporate Debtor and its sister concern namely RDPL and the books of accounts of Corporate Debtor dated 31.03.2021. It is not the case of the applicant that his right of repayment of the outstanding amounts is lost by this adjustment. The applicant can exercise and enforce the debt outstanding from the RDPL. 61. In view of the aforesaid, this Bench is of the view that the claim of the applicant namely Piramal Capital & Housing Finance Limited cannot be admitted." 7. The Adjudicating Authority in the impugned order has placed reliance on following for coming to the conclusion that claim of the Appellant cannot be admitted. (A) The internal communication between the Corporate Debtor and RDPL dated 27.07.2020 and 18.02.2021. (B) Balance Sheet for the year 31.03.2021 8. We may first look into the internal correspondence between the Corporat....
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....that their credit amount Rs.38,51,98,790/- is with DHFL which can be adjusted towards the loan amount availed by the Corporate Debtor. The letter refers to transaction dated 19.11.2018 which was NEFT transaction in the beneficiary DHFL account. The above letter dated 18.02.2021 cannot be read in any manner to discharge any loan of the Corporate Debtor which was owed to the Appellant. The letter at best refers to transaction dated 19.11.2018 by the RDPL in the account of DHFL. Any transaction made by the RDPL in account of DHFL on 19.11.2018 cannot ipso facto discharge loan liability of Corporate Debtor owed to the DHFL and there are no material brought on record to show that subsequent to letter dated 18.02.2021, actually the loan was discharged by remitting the amount of Rs.38,51,98,790/- in the loan account of the Corporate Debtor which was received by DHFL. For first time on 18.02.2021, the RDPL is making an offer to adjust the amount laying in the account of DHFL. By mere making an offer, there shall not be any adjustment of loan payable by Corporate Debtor to the Appellant. There has to be any transaction after 18.02.2021 to show that the loan of Corporate Debtor was actually ....
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....bsp; i ii Secured Term Loan - DHFL (Refer Note 1) Inter Corporate Loans Total - 22,800,000 325,000,000 9,300,000 22,800,000 334,300,000 22,800,000 334,300,000 14. The above Balance Sheet has itself been referred to as 'Unaudited Balance Sheet of the year'. When the Balance Sheet has not yet been audited, we fail to see that how importance can be attached to such Balance Sheet. Furthermore, in the Balance Sheet loan of Rs.32.50 Crore which loan was reflected earlier in the Balance Sheet has just been deleted whereas in the same Balance Sheet as on 31.03.2020, the loan of Rs.32.50 Crore has been reflected of DHFL. The Unaudited Balance Sheet as on 31.03.2021 although does not mention the loan to continue as on 31.03.2021 but there are no details in the Balance Sheet as to how the loan stood discharged. Corporate Debtor's Balance Sheet as on 31.03.2021 which is unaudited and has not even show as to when it was submitted to the ROC, placing reliance by Adjudicating Authority on such Balance Sheet to accept the case of the Resolution Professional that the debt stood discharged is wholly inappropriat....
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....s claimed as discharge of the debt. The amount which was paid by the RDPL is PEMI/EMI which was on the same date disbursed as loan to the Corporate Debtor again. When the amount is disbursed as loan amount to the Corporate Debtor, the transaction has completed and exhausted. The case taken by the Resolution Professional on the basis of said entry that amount discharged the loan of Corporate Debtor payable to the Appellant is baseless and a false plea. 17. Both the above entries on 19.11.2018 are more fully explained in the copies of Statement of Account of RDPL alongwith ledger filed by the Resolution Professional in Affidavit in Reply as Annexure R-10. When we look into Annexure R-10 filed alongwith the Reply, both the transactions dated 19.11.2018; payment of Rs.38,51,98,790/- paid to DHFL and further received from DHFL is reflected in the account. We extract entry dated 19.11.2018 as contained in Annexure R-10 which is to the following effect: 18. The above part of the account of RDPL clearly indicate that payment of Rs.38,51,98,790/- was made from the IDBI Bank Account of the RDPL to the DHFL Bank and on the same day another entry indicate that the same amount was receive....
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.... that, if it has any meaning in law, it means acts done or documents executed by the parties to the "sham" which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create." (emphasis supplied)" 20. The Hon'ble Supreme Court in the above case has elaborated the 'sham transactions'. It was held that the transaction which is sham or collusive would only create an illusion that money has been disbursed to a borrower with the object of receiving consideration in the form of time value of money, when in fact the parties have entered into the transaction with a different or an ulterior motive. In the present case, the claim of the Appellant has not been admitted on the ground that the loan of the Appellant to the Corporate Debtor stood discharged by RDPL. There is no finding in the impugned order terming the transaction as a collusive transaction. Hence, the contention of the Respondent, in the above view, is rejected. Furthermore, there is no denial by Corporate Debtor of disbursal of loan of Rs. 32.....