2022 (3) TMI 1425

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....Creditor are as follows:     I. The Applicant vide it offer letter dated 27.12.2017 (Ref. MUM/2017/1221-00) ("Offer Letter") offered to extend to Anupama Agarwal ("the Borrower") a rupee term loan facility upto Rs. 30,00,00,000/- (Rupees Thirty Crores Only) on the terms and conditions more particularly described therein.     II. Pursuant to the aforesaid Offer Letter, a loan Agreement was executed between the Applicant and the Borrower, whereby the Applicant granted a rupee term loan facility to the Borrower to the extent of INR 30,00,00,000/- (Rupees Thirty Crores Only) ("Loan Facility") on the terms and conditions as more particularly mentioned in the said Loan Agreement. Pursuant to the Loan Agreement the Applicant disbursed the Loan Amount of Rs. 29,00,00,000/- to the Borrower.     III. The Corporate Debtor in consideration of the Applicant having agreed to advance the said Loan Facility to the Borrower, executed Corporate Guarantee under which it irrevocably and unconditionally agreed for repayment on demand of the Loan Facility advanced to the Borrower by the Applicant along with interest and other monies, costs, charges o....

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....he entire outstanding amount under the loan agreement within 48 hours.     IX. The Financial Creditor addressed inter-alia to the Corporate Debtor intimating the Corporate Debtor of the exercise of the Applicant's right under the Pledge Agreement, as well as under section 176 of the Indian Contract Act, 1872, i.e. to invoke, sell/appropriate or otherwise dispose of the pledged securities. The Financial Creditor further addressed letter inter-alia to the Corporate Debtor giving notice of the exercise of the Applicant's right under Clause 1.7 of the Pledge Agreement.     X. The Financial Creditor issued follow up notice inter-alia to the corporate Debtor reiterating the Events of Defaults committed inter-alia by the Borrower and Corporate Debtor and their ongoing obligation to make payment of the then outstanding amount as per the terms of the Loan Agreement.     XI. The Borrower and the Corporate Debtor, have failed to make repayment of the loan, as per the terms of the Loan Agreement or the Security Agreement, or the other security documents. Hence this Petition. 3. The Corporate Debtor filed affidavit in reply throug....

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....the financial creditor to the said M/s. Vadraj Cement Ltd. and financial creditor is the de-facto Promoter of the said Vadraj Cement Ltd., the financial creditor cannot seek recovery of the financial assistance of Mrs. Anupama Agarwal to the said M/s. Vadraj Cement Ltd., as the loan was originally disbursed with a clear understanding that the end user would be M/s. Vadraj Cement Ltd. By taking over majority stake holding in the said M/s. Vadraj Cement Ltd., the financial creditor now shown its intensions. By taking over majority stake holding in the said M/s. Vadraj Cement Ltd., the financial creditor now shown its intensions. Therefore, the financial creditor estopped from making any claim against Mrs. Anupama Agarwal (the borrower). The Guarantor/Corporate Debtor provided guarantee for the personal financial assistance without knowledge of the understanding between the borrower and the lender behind the curtain. In that particular case, the Financial Creditor ought to have had the knowledge for the use of such huge loan availed by Mrs. Anupama Agarwal. Since the end us being a back to back loan to said M/s. Vadraj Cement Ltd. and the Financial Creditor being the majority sharehol....

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....ainable as the amount claimed by the Applicant is disputed and has not approached this Hon'ble Tribunal with clean hands. Therefore, on this ground the Petition ought to be dismissed.     FINDINGS     1. Heard both sides and perused the record. Since the fate of the Company Petition is depending on the pleas raised by the Corporate Debtor, let us examine the pleas raised by the Corporate Debtor. The Corporate Debtor raised the following pleas in the reply as well as during the course of arguments.         i. The purposed letter of guarantee executed by the Corporate Debtor is insufficiently stamped and therefore cannot be acted upon.         ii. The letter of guarantee does not fall under the definition of guarantee as defined under Section 126 of the Indian Stamp Act.         iii. The loan advanced by the Financial Creditor has been secured with various securities including pledge of certain shares and Financial Creditor is claiming the entire amount under the guarantee without deducting the value of securities.   &n....

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....or that the instant letter of guarantee dated 29.12.2017 is signed by the Guarantor alone and not signed by the borrower and the creditor and therefore, the above letter of guarantee is unenforceable.     In this connection, it is important to mention here that the said guarantee was obtained by means of a letter executed by the Corporate Debtor. The sanction letter dated 27.12.2017 issued by the Financial Creditor contains the name of Corporate Debtor as Corporate Guarantor and the said sanction letter was duly signed by both the principal borrower and the Financial Creditor. Therefore, the contention of the Corporate Debtor to the effect that there was no consent of the principal borrower to the letter of guarantee executed by Corporate Debtor has no force of law. It is also appropriate to mention here that the Financial Creditor had issued a recall notice dated 30.07.2018 to the principal borrower as well as the Corporate Debtor and another personal guarantor Mr. Rishi Agarwal which was duly received by them. The Corporate Debtor having received the said notice did not raise any objection nor sent any reply disputing the liability and therefore the Corporate De....

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....y & Bankruptcy Code, 2016.         c. The Financial Creditor shall deposit an amount of Rs. 5 Lakh towards the initial CIRP cost by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order.         d. That this Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor.         ....