TaxTMI 
TaxTMI 
2025 (6) TMI 459
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....MBER (TECHNICAL) 1. The present two appeals have been filed against the same Impugned Order dated 02.05.2024 passed by National Company Law Tribunal, Indore Bench (M.P.) ('Adjudicating Authority') in C.P. (IB)/ 53 (MP)2023 and CP (IB)/54 (MP) 2023 under Section 61 of the Insolvency and Bankruptcy Code, 2016 ('Code'). 2. The Company Appeal bearing Comp. App. (AT) (Ins.) No. 1140 of 2024 has been filed by Sunil Mulchandani- Ex Director of the Suspended Management of M/s Chinar Realty Pvt. Ltd. against Omkara Assets Reconstruction Pvt. Ltd. (Respondent), whereas the second appeal bearing Comp. App. (AT) (Ins.) No. 1141 of 2024 has been filed by Sunil Mulchandani- Ex Director of the Suspended Management of M/s Chinar Retails and Infrastructure Pvt. Ltd. against Omkara Assets Reconstruction Pvt. Ltd., (the Respondent). 3. We note that there is one common Impugned Order which has been challenged by the same Appellant, however, in different capacity as he was Suspended Director of two different Corporate Debtors against whom the Impugned Order was passed. 4. Both the cases have been pleaded by their counsel in joint manner and issues and facts are also same, hence, we shall de....
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....lty Pvt. Ltd. and M/s Chinar Retails and Infrastructure Pvt. Ltd., with the original Financial Creditor. The Appellant referred to Clause B in the Schedule of the Loan Agreement according to which the repayment of loan along with interest was to be made in 24 Equated Monthly Instalments ('EMIs') commencing after 48 months from the date of disbursement. The Appellant elaborated that the first date of disbursal was 31.07.2017 and hence, for the next 48 months i.e., four years i.e., up to 30.07.2021, there was no amount payable by the Corporate Debtor. 10. The Appellant submitted that however, the original Financial Creditor issued a notice on 08.11.2019 to the borrowers/ co-borrowers/ guarantors/ mortgagers to repay outstanding amount, followed by demand notice dated 02.09.2020 and demand notice dated 05.12.2022. It is the case of the Appellant that this itself indicate that the original Financial Creditor acted with prejudice mind to lead the Corporate Debtor into Corporate Insolvency Resolution Process ('CIRP') and subsequently into liquidation. The Appellant further argued that there was no amount payable before 30.07.2021, as such the Section 7 application should not have been....
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....sed the Impugned Order. The Appellant submitted that the said IA was not only dismissed without considering the merit of the case and the Adjudicating Authority did not even recognise the averments made by the Appellant. 15. The Appellant submitted that the first repayment of EMI was to start from 30.07.2021, therefore, it was wrong on the part of the Financial Creditor to raise the issue of default, just after 10 months of the first disbursement which shows malafide intentions of the Respondent/ Financial Creditor. 16. Concluding his arguments, the Appellant requested this Appellate Tribunal to set aside the Impugned Order and allow his appeal. 17. Per contra, the Respondent denied all averments and allegations made by the Appellants as misleading, baseless and malicious with the sole purpose of derailing the CIRP process. The Respondent/Financial Creditor stated that the Adjudicating Authority has considered all the facts and passed well reasoned speaking order which need no interference. 18. The Respondent also gave the facts of the case and submitted that the Appellant had approached the original Financial Creditor for availing financial facilities of Rs. 100 Crores....
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....rsement. The Respondent submitted that vary fact the bank statement of Axis bank w.r.t. accounts of the Corporate Debtor referred by the Appellant in his pleadings, categorically stipulated the disbursement of money in the accounts of the Corporate Debtor's and thus, the debt has been crystalised. 24. The Respondent has also submitted that the Appellant cannot tale blow hot and cold position since at one time the Appellant stated that there has been no disbursal of money by the original Financial Creditor to Corporate Debtor since the money is alleged to have taken back by the original Financial Creditor, whereas at the same time, the Appellant has stated that he has been paying instalments regularly to the original Financial Creditor and further the debt could not have been mature before 48 months i.e., by 30.07.2021. It is the case of the Respondent that such averments of the Appellant are impermissible and perverse. 25. The Respondent also denied the fact that the IA No. 260/2023 has anything to do with the Respondent's right to file company petition under Section 7 of the Code, which was allowed by the Adjudicating Authority vide the Impugned Order dated 02.05.2024. The R....
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....0035075808, being the Escrow Account of Chinar Realty from DHFL, followed immediately by the transfer of (i) Rs. 77,41,23,636/- and (ii) Rs. 2,58,76,364/- (totals amounting to Rs. 80,00,00,000/-) to accounts bearing Nos. 914020017664947 and 912020026151278 respectively, hence there was no effective disbursement of money to the Corporate Debtor by the original Financial Creditor. In this regard, we note that the money was credited in the accounts of the Corporate Debtor as reflected by the bank account maintained by the Axis Bank (who incidentally is not Financial Creditor or the assignee of the debt in the present case) and the fact that money was transferred to other accounts. We observe that such facts have got no bearing of the disbursal of money by the original Financial Creditor to the Corporate Debtor. The Appellant could not give any concrete evidence to establish that the money was illegible or wrongly or malafidly withdrawn by the original Financial Creditor. We wonder how the original Financial Creditor, who had no direct control over the banker (Axis Bank) of the Corporate Debtor, would have made such manipulation. No more details of the same have been made in the ori....
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....y the said loan together with interest accrued as stipulated in the Schedule-I of the loan agreement, by 15th of each month in advance for respective months. It has also mentioned in Clause 3.1 that interest will be payable monthly from the date of first disbursement. Thus, it has been clearly stipulated that the interest is payable monthly from the date of first disbursement which is different condition then of EMI, wherein EMI is required to be paid only after 48 months of the first disbursement. We also note that in Clause 3.4 of the loan agreement, it has once again been stipulated that PEMI shall be paid from the date of first disbursement till commencement of repayment through EMI. It has also mentioned in the loan agreement that if there is a default in repayment of interest of principal for two consecutive months, it shall be constituted as an event of default or violation of terms & conditions of the sanction and the financial creditor may recall the entire loan. Thus, we observe that there are two distinct terms of EMI & PEMI which have been stipulated in the loan agreement and which have been prescribed for different purposes. We need to understand that the EMI is the....
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....pplication, the basic ingredients as stipulated in the Code and as elaborated in great details by Hon'ble Supreme Court of India in various judgements including in matter of Innoventive Industries Ltd. v/s. ICICI Bank [(2018) 1 SCC 407] that there should be debt, there should be default and threshold should be more than Rs. 1 Crore for allowing application filed under Section 7 of the Code by the Adjudicating Authority. We find that all ingredients have been met and as such the Adjudicating Authority has correctly allowed the application under Section 7 of the Code filed by the Respondent. 31. We do not find any error in the Impugned Order. The Appeal devoid of any merit stand rejected. No cost. I.A., if any, are closed. ============= Document 1 A AXIS BANK CHINAR REALTY PVTLTD Joint Holder > - 211 CRIAR HOUSE SGP NAGAR ZON5-2 Cartamer No : 864371309 Selesre :CA-SPECIAL BHOPAL MADHYA PRADESH PIE462011 : Etudeswrot of Arts Account No 1912020035015808 for the porled (From : D1-04-2017 To : 3140-2017) Tran Date Valve Dala Transaction Particulars Chg No Anenstiln Rs) Balancela RS. Brnoch Name . OFIRING BALANCE 4256980.23 04-04-2017 04-04-2067 Wy ....
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....0 315750.22 CENTRALISED CTS MUM 20-06-2047 10-05-3017 Service Tat. @15/001 cp Claps 93.75 355666.47 20-001-2017 20-05-2017 62:5.00 385041.41 BHOPAL_(MP] 28-06-2017 35-06-2007 TRO TO DERL 232259-01 173191.47 MUMBAI FORT (MIT) 01-02-2011 $2000.00 173791.4] BITTAN MARKET, BHOPAL 31-07-2001 31-07-2017 TRE FROM DEWAN ROUSING FINANCE CORPORATION LTD CZN 800000000.00 C BOOUT3791/47 MUMBAI PORT [MH] TRE TO9:4020007664947 MUMBAI PORT (WH) 31-07-2042 31-02-2017 MAIMBAL PORT [ME] TRANSACTION TOTAL DRCR CLOSING BALANCE 17391.47 Cheque Return Details Reason for Return Return Date Chq Amount Transactin Type Document 2 LOAN AGREEMENT THIS AGREEMENT is made and executed at Bhopal, on this 28 day of July 2017 by. Chinar Realty Private Limited, a Company registered under the Companies Act, 1956. having registered office at 231, Chinar House, Zone II, M.P. Nagar, Bhopal (MP) 462011, through its Authorised Director Mr. Sunil Moolchandani (Hereinafter referred to as the "Borrower" which expression shall unless repugnant to the context or meaning thereof include their executors, administrators, Liquidator and assigns, etc....
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.... of the dues of DHFL or any breach of any terms and conditions of sanction of the said Loan and/or this For DEWAN HOUSING FINANCE CORPO. LTD. Chúnar Rails mnie Intrautructure Authorfred/Signatory Tractor (Cimir Renthe & Infrastructure Pit Lich) (Chimar Regio dokind) DHEL Document 4 Agreement/Security Documents including the events of default specified in the sanction letter and herein. . "Interest" means the interest on the Loan at the rate provided hereinafter. . "Loan" means the amount of the Project Loan agreed to be lent and advanced by DHFL to the Borrower on the terms and conditions as provided under this Agreement and also in the Schedule hereunder written. . "Pre Equated Monthly Installment" (PEMI) means interest at the rate payable on the Loan from the respective dates of disbursement to the date immediately prior to the date of commencement of EMI as mentioned in the Schedule hereunder written. . "Prepayment" means premature repayment of the Loan as per the terms and conditions laid down by DHFL in its sanction letter and that may be stipulated by DHFL from time to time in that behalf and as may be in force at the time the pre- paym....
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....rest on the said Loan will begin to accrue in favour of DHFL from the date of delivery/dispatch of the cheque irrespective of the time taken for transit/collection/realization of the cheque/s by the Borrower. 3.4 PEMI shall be charged from the date of first disbursement till the commencement of repayment through EMIs. Post Dated Cheques (PDC's) covering the same should be furnished with each disbursement. If there is a default in payment of interest or principal for two consecutive months, it shall be construed as an event of default or violation of the terms and conditions of the sanction and the entire said Loan may be recalled. 3.5 If in the opinion of DHFL, the cash flow / profitability of the Borrower and / or other circumstances so warrant, DHFL shall be entitled to require the Borrower to repay the said Loan in a shorter period, notwithstanding the period herein agreed and stipulated For DEWAN HOUSING FINANCE ECONST For DEWAN HOUSING FINANCE CORPO. LTD MUMBAI unay Realty P. Lid. (China Recalls & Infrastructure Pvt Luif) 0 Kathofiscd Signator Director Director (Chinte Realty Put Lid) DHFL Document 6 INTEREST 4. 4.1 Rate of Interest ....
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....the said project and also the Agreements/Deeds to be entered into by and between the Borrower and flat purchasers will disclose: (i) the name of DHFL as lender to the said project; (ii) first mortgage/charge of DHFL on the said project assets and receivables; (iii) that the NOC/permission of DHFL is required for sale of flats in the said project; and (iv) that all the payments to be made by the flat purchasers in the said project are to be routed through the Escrow Account of the Borrower held jointly with DHFL. 9.4. The Borrower shall disclose the first mortgage/charge of DHFL on the said project assets and receivables while publishing any advertisements in respect of the said project in newspapers/magazines etc. 9.5. In the event of non compliance of Legal Scrutiny Report (LSR) and/or Technical Scrutiny Report (TSR), the fees paid by the Borrower to DHFL shall not be refunded 9.6. Interest (PEMI) shall be charged from the date of first disbursement till the commencement of repayment through EMI's. The Post Dated Cheques (PDCs) covering the same/entire Loan amount should be furnished by the Borrower If there is a default in payment of Interest or Principal for....