TaxTMI 
TaxTMI 
2023 (12) TMI 1076
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....any Law Tribunal, Mumbai Bench at Mumbai in Company Petition (IB) No. 1140/MB-IV/2020, by which Corporate Insolvency Resolution Process (in short 'CIRP') under Section 7 was ordered against the Corporate Debtor (hereinafter referred as "CD") / Respondent No.1 and Mr. S. Gopala Krishnan was appointed as the Insolvency Resolution Professional. 2. Both parties were heard and all documents perused. Brief facts of the Appeal 3. The factual matrix of the present appeal is in subsequent paragraphs. 4. A petition under Section 7 of the IBC, 2016 was filed by Rupa Infotech & Infrastructure Pvt. Ltd. (Financial Creditor (hereinafter referred as "FC")/ (Respondent No.2) under "IBC" before the Adjudicating Authority seeking CIRP against Shankeshwar Properties Pvt. Ltd. (Corporate Debtor / Respondent No.1). 5. The case of the Financial Creditor / Respondent No. 2. is that it had provided inter corporate loan of Rs. 7 crores @ 12% per annum interest for which a document with the title of "confirmation and undertaking" @ interest of 1% per month is on record. The Corporate Debtor had undertaken to make repayment of Rs.7 crores on demand after a period of 90 days. The Corporate Debt....
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....with the title of "confirmation and undertaking" in deciding for CIRP. 11. In his written submissions before the Adjudicating Authority, Appellant assails the judgment of this Tribunal in Satra Properties (India) Limited vs. Vistra ITCL India Limited 2022 SCC OnLine NCLT 15. In the Satra Properties (supra), this Tribunal had observed that there is no need to get into the issue of stamp duty as it is irrelevant and uncalled for as there existed other documents which proved the existence of a debt and a default, which is not the case, in the present matter. 12. Appellant claims that the judgment in Satra Properties (India) Limited vs. Vistra ITCL India Limited 2022 SCC OnLine NCLT 15 [supra] is per incuriam as the same has not considered the binding judgment of the Hon'ble Apex Court in Essar Steel India Limited Committee of Creditors vs. Satish Kumar Gupta & Ors. (2020) 8 SCC 531. Relevant extract are: "..152. So far as Civil Appeal No. 7266 of2019 and Civil Appeal No. 7260 of 2019 are concerned, the resolution professional has rejected the claim of the appellants on the ground of nonavailability of duly stamped agreements in support of their claim and the failure....
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....n default as per clause 11 of the Debenture Trust Deed. We, therefore, come to the conclusion that the section 7 application was admitted correctly by the Adjudicating Authority. We do not find merit in the appeal and accordingly dismiss it...." 15. Appellant's case that the Satra judgement (supra) is per incuriam cannot be accepted as the judgement has examined many similar issues comprehensively and still stands. We are obligated to follow the earlier case as the present case is similar to the supra case. 16. Respondent No.1 i.e. Resolution Professional has also relied upon the case of Mr. Aashish Kadam & Anr. Vs. Nagpur Nagarik Sahakari Bank Ltd. & Anr. Company Appeal (AT) (Insolvency) No. 355 of 2022, relevant portion is extracted, which also does not support the case of the Appellant. "...... 5. We have perused the impugned order. In para 7 of the impugned order, document executed by the Corporate Debtor has been noticed. One of the facts which has been noticed is that present is a case of mortgage by deposit of title deed. Even if the facility agreement was not stamped, there was other materials on the record which clearly prove the financial debt whic....
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.... the Corporate Debtor. And the Corporate Debtor has paid interest on the debt and deducted tax at source also. The Corporate Debtor has himself filed the Audited Financial Statement for the year ended 31.03.2020 vide Additional Affidavit dated 16.11.2022 and the Financial Creditor in that statement has been shown as unsecured loan with the outstanding sum of Rs.3,00,00,000/. Furthermore, Financial Creditor has attached the records of the debt as obtained from National E Governance Services Limited (NeSL), in which details of the debt and the date of default has been established with respect to the CD / M/s Rupa Infotech and Infrastructure Private Limited. 20. Appellant himself states in his appeal that the Corporate Debtor had serviced the interest in accordance with the terms of the confirmation and undertaking till 2017. The admission of liability in the balance sheet of Respondent No.1, the part payments made by Respondent No.1 to Financial Creditor from time to time and NeSL records sufficiently demonstrate the admission of liability by Respondent No.1, even without relying upon "confirmation and undertaking" dated 24.09.2015. 21. Averments of the Rupa Infotech & Infrastr....
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....cial Creditor which is admitted in the audited financial statements placed by the Corporate Debtor, being shown as unsecured loan, and which has also been noted by the Adjudicating Authority. Furthermore, R1 himself has admitted that it has serviced the interest in accordance with the terms of the confirmation and undertaking till June 2017. National E Governance Services Limited (NeSL) Report dated 24.06.2020, also reflects this as a loan wherein the Date of Default is reflected as 23.12.2015 and the total outstanding is of Rs.4,80,80,000/- (Rupees four crore eighty lakh eighty thousand only). 25. Adjudicating authority has rightly come to the conclusion that it is a loan and allowed Section 7 proceedings under IBC. Conclusions 26. Adjudicating Authority has come to a conclusion that there is a financial debt and there is a default on the basis of other documents, and no reliance whatsoever nature has been placed on the confirmation and undertaking dated 29.09.2015. Since Adjudicating Authority has not relied upon the "confirmation and undertaking" and has come to a conclusion that there is a debt and default and demand notice, which is not disputed and accordingly conclu....