TaxTMI 
TaxTMI 
2024 (8) TMI 854
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....sary to be noticed for deciding this Appeal are:- 2.1. Central Bank of India issued a sanction letter dated 27.11.2013 wherein certain credit facilities were sanctioned to the Corporate Debtor which included Cash Credit, Term Loan Non-Fund Based Limits. On 22.08.2015, a Corporate Guarantee deed was executed by the Corporate Debtor- Superfine Profile and Extrusions Pvt. Ltd. to indemnify the Central Bank of India Consortium for an amount not exceeding Rs.73.61 Crore. Another Corporate Guarantee Deed was executed on 18.11.2016 by the Corporate Debtor in favour of Central Bank of India, Indian Bank and Oriental Bank of Commerce (Now Punjab National Bank). On 26.12.2019, letter of sanction was issued by the Central Bank of India to Superfine Metals Pvt. Ltd., the Principal Borrower for Ad hoc Limit of Rs.3.70 Crores. Another sanction letter dated 09.09.2020 was issued for FITL Scheme for a sum of Rs.3,16,90,762/-, in sanction letter dated 26.12.2019 and 09.09.2020, Bank of Maharashtra was also added in Consortium but no disbursement took place by the Bank of Maharashtra). On 06.11.2020, new Corporate Guarantee was executed for the Central Bank of India, Indian Bank, Oriental Bank of....
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....el for the Respondent submits that the Bank has no objection in considering the proposal, however, the formation of CoC not to be interdicted. Let the Bank takes a decision on the restricting proposal submitted by the Appellant within two weeks from today. Let the CoC be constituted but no further action shall be taken by the CoC till the next date. List this Appeal on 09.02.2024. It shall be open for the Respondent to file an affidavit before the date fixed." 4. In the Appeal, there has been further orders to await the outcome of re-structuring proposal. A detailed order was passed on 09.04.2024 listing the appeal on 13.05.2024 providing that all necessary reports for the Bank may be called for regarding the re-structuring proposal. Interim order was extended. On 22.05.2024, again following order was passed by this Tribunal:- "22.05.2024: Learned Counsel for the appellant referring to Additional Affidavit submits that bank had issued a letter dated 10.5.2024 indicating that no Binding Letter from Investor has yet been received. Ld. Counsel for the appellant submits that Investor has already noticed the said letter and within a short period of....
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....ended by the Corporate Debtor had come to an end and without invocation of the guarantee dated 06.11.2020, no proceeding could have been initiated. It is submitted that by subsequent sanction letters dated 26.12.2019 and 09.09.2020 and the guarantee dated 06.11.2020, contract between the parties have been novated. It is submitted that in view of the novation of the contract between the parties by virtue of Section 62 of the Contract Act, the original contract need not be performed. 9. Counsel for the Respondent refuting the submissions of the Counsel for the Appellant submits that earlier sanction letter and guarantee deed dated 22.08.2015 and 18.11.2016 still binds the Corporate Debtor by subsequent sanction letters dated 26.12.2019 and 09.09.2020, the existing securities were continued. Existing securities including the aforesaid guarantees dated 22.08.2015 and 18.11.2016 being continuing, Bank has rightly invoked the guarantees dated 22.08.2015 and 18.11.2016. It is submitted that non-invocation of guarantee dated 06.11.2020 is inconsequential. It is submitted that the disbursements were made to the Corporate Debtor consequent to the sanction letter dated 27.11.2013 and there....
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....ousand and Eight Only) ("Hereinafter referred to as the said Loan'). The bank has sanctioned the credit facilities wide sanctioned letter dated 27-11-2013, 26-12- 2019, 09-09-2020, 19-01-2021. Loan was disbursed from time to time to Superfine Metal Pvt Ltd wherein your company has given corporate guarantee. We have to inform you that the principal borrower ie. Superfine Metals Pvt Ltd has committed defaults in payment of their liabilities and consequently their account has been classified as a non-performing asset. A copy of the notice dated 29.06.2022 under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and Recall Notice dated 02.01.2023 sent by us to the Principle borrower is enclosed. Since the borrower has committed defaults. in terms of the guarantee deed dated August 22, 2015 and November 18, 2016, Superfine Profile and Extrusions Pvt Ltd have become liable to pay to us the outstanding amount of loan/credit facilities aggregating balance O/s as of 06.03.2023 Rs. 94,71,23,119.18/- (Rupees Ninety Four Crore Seventy One Lakhs Twenty Three Thousand One Hundred and Nineteen an....
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....e Part-IV refers to breakup of the defaulted amount for each facility as on 06.03.2023 as Annexure-E. Annexure E although has not annexed in the Appeal but in the compilation of documents filed on behalf of the Bank. The said Annexure E is at Pages 47 to 52 which we shall notice hereinafter. 14. The guarantees which were executed by the Corporate Debtor dated 22.08.2015 and 18.11.2016 have been brought on the record by the Appellant. Clause 1 of the Guarantee Deed dated 22.08.2015 provide that if any time default shall be made by the borrower in payment, the guarantors shall forthwith on demand pay to the Central Bank of India amount not exceeding Rs. 73.61 Crores. Para 1 of the Guarantee Deed is as follows:- "1. If any time default shall be made by the borrower in payment of the principal sum (not exceeding Rs 73.61 Crores) together with interest, costs, charges, expenses and/or other money for the time being due to the Central Bank of India consortium in respect of or under the above mentioned credit facilities or any of them the guarantors shall forthwith on demand pay to the Central Bank of India consortium the whole of such principal sum (not exceeding Rs 73.61 Cro....
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.... the Lead Bank/Central Bank of India consortium has agreed to grant to the borrower all or some or any of the credit facilities either in Indian or foreign currencies by way of over drafts, cash credits, term loans, pre-shipment credits, opening of letters of credit, issuing of guarantees including deferred payment guarantees and indemnities negotiations and discounting of demand and /or Usance bills and cheques inland as well as foreign and such other facilities as may be agreed upon from time to time between the bank and the borrower (hereinafter called the above mention facilities) for sums not exceeding in the aggregate the sum of Rs. 92.47 crores (hereinafter for the sake of brevity referred to as the principle sum) on the terms and conditions specified and contained therein." 16. The submission made by the Appellant of novation of the contract and non-invocation of the subsequent guarantee dated 06.11.2020 is based on sanction letters dated 26.12.2019 and 09.09.2020 which according to the Appellant is sanction of further amount which amount has been claimed as a debt under Part IV and there being no invocation of guarantee dated 06.11.2020, application under Section 7 is n....
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....AI AHMEDNAGAR-414001 MAHARASHTRA Dear Sir, REG: SANCTION OF FITL With reference to your application for FITL SCHEME, We have examined your application based on the application submitted by you and We are pleased to inform you sanction of FITL SCHEME on terms and conditions mentioned in this sanction letter. 1. Name of the Borrower M/S SUPERFINE METALS PVT. LTD. 2. Address PRATIBHA 1267 DALMANDAI AHMEDNAGAR-414001 MAHARASHTRA 3. Purpose of Loan Deferment of interest in working capital facility. 4. Loan Amount Rs. 3,16,90,762.00 5. Facility type Term Loan 6. Rate of Interest 10.30% pa. Rate of interest as being applied on the existing FBWC limit of the borrower. 7. Repayment term 6 Instalment of Ra. 52,81,794 + Interest. Commencing from 1st October 2020. FITL shall be repayable fully not later than 31.03.2021 8. Documentation Agreement for FITL OTHER TERMS AND CONDITIONS- 1. Any unpaid arrears of interest/Instalments/Charges pertaining to 01/03/2020, will be repaid before disbursement. 2. The instalments in the term loan falling due during the period from 01/*/* to ....
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....ns mentioned in its respective Sanction Letter dated 24.06.2019, 22.01.2020, 21.09.2019 & 12.08.2020 and also other agreements and security documents entered into between the Borrower and THE LENDER (hereinafter referred to as "the said agreements")" 22. We have referred to Annexure-E which was facilities wise breakup. When we look into Annexure-E, it is clear that the amount disbursed with regard to term loan were disbursement to Principal Borrower till 24.02.2014 and amount disbursed under Cash Credit is from 2013 to 2023 whereas in 2022, it is only Rs.129.8 and in 2020, it is Rs.1,23,600/-. FITL was disbursed on 30.09.2020 and Cash Credit Adhoc disbursed on 26.12.2019. We have already noticed that the disbursement of FITL and Cash Credit Adhoc was fully covered by Cash Credit Facilities and Cash Credit were all covered by the earlier bank guarantees. When the Corporate Debtor was bound by the earlier bank guarantees dated 22.08.2015 and 18.11.2016 which guarantees are still continuing, we cannot accept the submission of the Appellant that by virtue of guarantee dated 06.11.2020 which was for Term Loan of Rs.114.22 Crores, earlier guarantee has wiped off and are not in existen....