TaxTMI 
TaxTMI 
TaxTMI 
2026 (1) TMI 527
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....lready admitted by Corporate Debtor in their Audited Balance Sheet. Appellant's case: 2. The Appellant - Financial Creditor is a Non-Banking Financial Institution ("NBFC") incorporated on 15th February, 1994 and is in the business of financing small and medium enterprises for acquisition of Machinery, Loans against Machinery or other business purposes. Primary security for loan is exclusive charge on the machine(s) purchased by the Debtors using the funds or any other movable asset. The Appellant also obtains Corporate Guarantees from the borrowers in order to secure the credit facilities advanced to the Borrowers. In the year 2012 Shivam Continental Private Limited has taken over the running business of M/s Shivam International with all its assets and liabilities and further recorded the same in the amended MOA. In the same year 2012, M/s Shivam International had availed the loan facilities for their business from the Appellant. The Appellant had sanctioned the loan facility for the sum of Rs. 1,42,00,000/- (Rupees One Crore Forty-Two Lakhs Only) by issuing the Sanction Letter dated 24th September, 2012. Pursuant to the aforesaid Sanction Letter dated 24.09.2012, the Appella....
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....or herein) in the Loan Agreement No. LNJAL01112-130002238 dated 30.03.2013 mentioning the detail of another active loan bearing Loan Agreement No. LNJAL01112-130001689 with respect to M/s Shivam International merged with Shivam Continental Pvt. Ltd. The said "No Dues Certificate" was duly acknowledged by the Respondent. 6. The Appellant on 01.03.2023 had received the intimation letter from IRP with respect to the commencement of Corporate Insolvency Resolution Process of Shivam Continental Private Limited along with Form-A i.e., paper publication from Ms. Shalu Khanna (Interim Resolution Professional) requesting for the submission of claim if any. Subsequently, the Appellant had filed its Claim Form- C on 11.04.2023 along with all the supporting documents. Later vide Email dated 21.04.2023 the Interim Resolution Professional had requested for certain documents for verifying the claim. Subsequently IRP was changed/replaced with another RP vide order dated 13.04.2023 by Adjudicating Authority. Thereafter, another Email dated 02.05.2023 was sent by present Resolution Professional for certain clarification/documents and the same was duly replied by the Appellant on 09.06.2023. Even ....
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....collateral security for it." 7.8. Adjudicating Authority in its finding at para 15 of the impugned order had inferred that the loan extended by the Appellant was taken over by the Corporate Debtor, para 15 of the findings of Adjudicating Authority is reproduced hereunder: "It is worthwhile to note that neither the terms of the takeover agreement dated 01.04.2012 nor the balance sheet of Shivam International as on 31.03.2012 has any mention about the loan, which was subsequently extended by the Applicant to Shivam International, from which it can be inferred that the loan extended by the Applicant was taken over by the Corporate Debtor." 7.9. Adjudicating Authority in its finding in para 16, stated that Adjudicating Authority is not inclined to accept the argument of the Appellant that loan extended by the Applicant to Shivam International, was taken over by the Corporate Debtor, and hence rejected the claim of the Appellant as Financial Creditor of the Corporate Debtor. 7.10. Adjudicating Authority in its finding has duly acknowledged the fact that balance Sheet of the Corporate Debtor for the year 2013 and 2014 has dismissed the appeal on ground that claim filed ....
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....04.2012 nor the balance sheet of M/s Shivam International as on 31.03.2012 mentioned the loan, which was subsequently extended by the Appellant to M/s Shivam International and the business of M/s Shivam International was taken over by the Corporate Debtor along with all assets and properties for a consideration of Rs. 103.38 lakh being the net worth as computed as per the balance sheet of Shivam International as on 31.03.2012. As per clause 2 of the Takeover agreement dated 01.04.2012, the liability of the Corporate Debtor towards M/s Shivam International was restricted upto 31.03.2012 and that nothing thereafter stood payable by the Corporate Debtor encompassing absolute and total consideration for all the obligations of the erstwhile business known as M/s Shivam International till the date 31.03.2012. Thus, the NCLT held that there was no document on record from which it can be inferred that the loan as extended by the Appellant to the Shivam International was taken over by the Corporate Debtor. Despite the fact that the takeover agreement dated 01.04.2012 formed the basis of the impugned judgment, the Appellant suppressed the takeover agreement and did not place it before this H....
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.... view of the same, the loan sanction provided to M/s Shivam International by the Appellant was never part of the takeover agreement dated 01.04.2012 and the Corporate Debtor had never intended to take over any liability of M/s Shivam International (proprietorship concern) after 01.04.2012. Even the IRP of the Corporate Debtor informed the Appellant on 11.06.2023, [Pg. 419, APB] that no entry of the loan granted by the Appellant existed in the financial statements of FY 2011-12 of Shivam International, and therefore the said loan was not a part of the assets and liabilities taken over by Corporate Debtor from Shivam International. The reliance on the balance sheets by the Appellant [Pg. 420-442, APB] is misplaced in view of the takeover agreement dated 01.04.2012 and in the demand promissory note dated 27.09.2012 only the proprietor is the guarantor for the loan extended to the Shivam International. The Corporate Debtor was neither the mortgagor nor the guarantor of the loan extended by the Appellant and therefore the balance sheets relied upon the Appellant cannot be taken as a conclusive proof to establish the status of Appellant as financial creditor of the Corporate Debtor. In v....
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....ant furnished certain documents and clarifications only on 09.06.2023 [Pgs. 417- 418, APB], resulting in a delay of 106 days from the CIRP commencement date. Upon receipt of the said information, and after careful examination of the documents and submissions made by the Appellant, the erstwhile Resolution Professional, after due consideration, communicated the rejection of the Appellant's claim as a financial creditor of the Corporate Debtor vide email dated 11.06.2023 [Pgs. 419, APB]. Undisputedly, the Appellant did not challenge the rejection for almost one year as the I.A. No. 1523 of 2024 was filed only on 03.06.2024. 16. Meanwhile in the 19th meeting of the CoC held on 06.03.2024, the Resolution Plan submitted by M/s Kazmi Enterprises was duly approved and the Resolution Professional filed IA (Plan) No. 7 of 2024 on 06.04.2024 before the NCLT, seeking approval of the aforementioned Resolution Plan. 17. Therefore, the NCLT rightly relied on RPS Infrastructure Ltd. v. Mukul Kumar, (2023) 10 SCC 718 and held that the claim of the Appellant was belated before the NCLT and the mere fact that the NCLT has yet not approved the plan does not imply that the plan can go back and f....
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....09.2012. 13.04.2025 IRP was replaced and RP Mr Rajiv Khurana was Appoint be Hon'ble Adjudicating Authority. 02.05.2023 RP Requested and raised certain queries for verification of claim. Particularly in the light of the fact that the alleged business takeover occurred on 01.04.2012, while the basis of the Appellant's claim was a sanction letter dated 24.09.2012. 09.06.2023 Appellant after gathering all the information regarding the queries raised by the RP, duly replied to the same. Appellant furnished the documents and clarifications only on 09.06.2023 [Pgs. 417-418, Volume III], resulting in a delay of 106 days from the CIRP commencement date. 11.06.2023 RP rejected the claim on ground Intec Capital Limited does not qualify as a financial creditor in respect to Corporate Debtor. 06.03.2024 In the 19th meeting of the CoC held on 06.03.2024, the Resolution Plan submitted by M/s Kazmi Enterprises was duly approved and the Resolution Professional filed IA (Plan) No. 7 of 2024 on 06.04.2024. IA(IBC)(PLAN)/7(CH)2024, remains pending before the NCLT. 14.06.2024 Upon rejecting claim, Appellant filed IA before Adjudicating Authority Hon'ble NCLT....
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....in the public announcement. Although, a proviso inserted by Notification No. IBBI/2023-24/GN/REG/106, dated 18.09.2023 (w.e.f. 18.09.2023) provides that a creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit his claim with proof to the IRP/RP up to the date of issue of request for resolution plans under Regulation period of ninety days from the insolvency commencement. However, the above proviso would not be applicable in the present case. In view of the above, it is clear that the claim has been filed by the Applicant beyond the stipulated time period prescribed under the Insolvency Regulations. 18. Further, the proceedings under Section 94 of the Code would not have any bearing upon the liability of the Corporate Debtor in the present case, if at all there is any liability of personal guarantor of Corporate Debtor, the same would be addressed in the final order of the Section 94 Application." 23. In the instant case we find that that the Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor on 23.02.2023. In compliance with the provisions of IBC, the then Interim Resolution....
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....formed by the Corporate Debtor of the said takeover of M/s Shivam International on 04.06.2015. It was also brought to our notice that Arbitration award was passed on 05.09.2015 and pleading in the said arbitration was completed and case was pending before the Arbitrator for pronouncement by that time and there was no occasion for Appellant to appraise the Arbitrator regarding the takeover of M/s Shivam International. 27. We also note that a demand promissory note dated 27.09.2012 was executed by M/s Shivam International in favour of the Appellant. RP argues that the said demand promissory note clearly reflects that the proprietor is the guarantor for the loan extended to the Shivam International and the Corporate Debtor is neither the borrower nor guarantor even when it is executed after the takeover agreement dated 01.04.2012, the impugned judgment has extracted it and the Appellant also did not place on record the said promissory note and thus the Appellant has not come with clean hands, by concealing the documents that were interpreted against the Appellant by the NCLT. 28. We find that the NCLT held that the claim of the Appellant was belated before the NCLT and the mere ....
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.... ("Limitation Act"), even where the name of the relevant financial creditor is not specifically mentioned in the balance sheet of the corporate debtor. This has been relied upon by the Appellant and we observe that it fully supports their case. We also observe that there has been acknowledgement by corporate debtor as well as suspended board of directors. From the material placed on record it is noticed that the Appellant was informed by the corporate debtor/ Suspended Board of directors for the very first time on 04.06.2015 via email by one Mr Rajesh who was employee of the Corporate Debtor, stating that M/s Shivam International is not anymore in existence and Corporate Debtor has taken over the said loan hence requested to merge the loans. Suspended board of director Chander Bhushan was also marked CC in the said mail, hence the Corporate Debtor as well as suspended board of director had acknowledged the liability and takeover of the loan of M/s Shivam International by Corporate Debtor. Furthermore, we also observe that one of the Promoter/Personal Guarantor of the Corporate Debtor namely Ms. Sunita Dogra Alias Sunita Rani has filed an application under section 94 of Insolvency a....
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....012. The assets and liabilities of Shivam International as on 31.03.2012 were taken over by Shivam Continental Pvt Ltd at a net worth of Rs 103.38 Lac vide agreement dated 01.04.2012 (prior to the grant of loan by you). Please note that no entry of the loan granted by you existed in the financial statements of FY 2011-12 of Shivam International, obviously so, since no such loan had been granted by the date of the sold agreement i.e. 01.04.2012. Accordingly, your loan was not a part of the assets & liabilities taken over by Shivam Continental Pvt Ltd from Shivam International on 01.04.2012 vide the said agreement. The said agreement dated 01.04.2012 specifically states that "Nothing will be payable hereafter on any other count or pretext and this consideration encompasses absolute and total consideration for all the obligations of the erstwhile business known as M/s Shivam International." Accordingly, no obligation of M/s Shivam International can be booked in the books of Shivam Continental Pvt Ltd from 01.04.2012. However, if the loan was granted to Shivam International (or its sole proprietor Sh Chander Bhushan), it can only be an inter-se arrangement between you and t....