TaxTMI 
TaxTMI 
2022 (10) TMI 520
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....ion of an unresolved Financial Debt of Rs. 26,96,49,413/-which includes: a. Rs.18,00,00,000/- being the redemption of 18 fully paid up unrated, unlisted, Secured, Redeemable, Non- Convertible Debentures issued by the Respondent; b. Rs. 3,64,31,833/- being the Redemption Premium accrued; c. Rs.64,71,708/- being the Penal Interest; d. Rs.4,67,45,872/- being the Interest. 2. The Petitioner enclosed the following documents, that records and evidence of default, categorically demonstrating the financial debt "due" and "payable" by the Corporate Debtor to the Petition: i. Debenture Trust Deed dated 17.03.2018, executed between the Debenture Trustee and the Respondent; ii. Supplemental Debenture Trust Deed, dated 19.03.2018, executed between Debenture Trustee and the Respondent; iii. Pledge Agreement dated 19.03.2018, between Mr. Priyal Kantilal Patel (Pledgor One); Ratik Harish Patel (Pledgor Two); Respondent and Vistra ITCL (India) Limited (Debenture Trustee) iv. Promissory Note issued by the Respondent in favor of Debenture Trustee dated 19.03.2018; v. Consent Terms dated 14.10.2020 entered between Resp....
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....As per the Consent Terms, the Respondent were to make payments dated 31.07.2021, 31.08.2021 and 30.09.2021. The Respondent issued post-dated cheques on 31.07.2021, 31.08.2021 and 30.09.2021, the same were returned as "dishonored", thereby breaching the Consent Terms. 7. The Petitioner addressed a notice dated 28.09.2021, to the Respondent and the Debenture Trustee, informing occurrence of default, in the obligations, under the Consent Terms wherein the Petitioner will be entitled to claim the entire amounts due and payable under the DTD and the Transaction Documents. The Debenture Trustee vide email dated 01.10.2021 acknowledged the event of default and advised the Petitioner to take appropriate legal action. Reply Filed by the Corporate Debtor 8. The Respondent Company in its reply denied each and every averments, allegation and/or contention contained in the present Petition. 9. The Respondent submitted that, the Petitioner is not the only holder of NCDs under the DTD. In fact, the Petitioner holds only 11% of the total NCDs by value. Evidently, the Petitioner represents a miniscule minority of the NCD Holders of the Respondent. 10. The Respondent submits that the ....
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....Petitioner 15. The Petitioner in its Affidavit in rejoinder, denied each and every allegation, made by the Respondent in its reply. 16. The Petitioner submits that the Respondent has nowhere in its Reply denied the Occurrence of Default. The Petitioner further submits, that this is proof that the Respondent is liable for the breaches under the DTD and other Transactional Documents and the Consent Terms. 17. The Petitioner, in its Affidavit in Rejoinder, submitted that the status of the Petitioner, being a minority debenture holder, is in no manner, a bar for its right to initiate appropriate proceedings under the Code. The Petitioner submitted that a Debenture Holder is a 'financial creditor' under Section 5(7) of the Code. The Petitioner then relied upon clause 9.8.3 of the DTD which narrates as: 'Notwithstanding anything to the contrary contained in this Deed, the Issuer acknowledges the Debenture Trustee's and Debenture Holder's unqualified right to take all such actions as may be available to them under various policies and schemes promulgated by the RBI from time to time (including but not limited to such actions in accordance with the RBI's Strat....
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....the period of limitation. 22. It is pertinent to note that, The Corporate Debtor by the virtue of Clause 3 recorded in the Consent Terms, has accepted its liability and default. Pursuant to the default under the Consent Terms, the Petitioner addressed a letter to the Debenture Trustee, of the blatant and continuous breach of the Consent Terms, committed by the Corporate Debtor. Consequently, the Debenture Trustee, under its sole discretion and in accordance with clause 9.2 directed the Petitioner to take legal action as mandated under the DTD and under law once again acknowledging the default on part of Corporate Debtor. 23. On going through the submissions made by the Learned Counsel for the Petitioner and on perusing the documents produced, which are placed on record, it is clear that the Corporate Debtor has defaulted in repayment of debt. Hence, owing to the inability of the Corporate Debtor to pay its dues, this is a fit case to be admitted u/s 7 of the I&B Code. 24. The Corporate Debtor having admitted their liability in the earlier Company Petition 45 of 2020 through Consent Terms is estopped from disputing of the existence of "debt" and "default" since this Company....