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Judgment
Heard the Ld. Counsels for the parties. The only defence espoused by the Ld. Counsel for the CD is that the original date of default was 04.06.2023, but the FC itself granted the opportunity to CD to repay the loan amount, thus, the date of default was shifted to 04.07.2023. According to her, the present proceedings could not be instituted till the declaration of the account of the CD as NPA, which in terms of the RBI guidelines could be declared only on expiry of three months from the date of default i.e., 04.10.2023 in the present matter.
Indubitably, the FC disbursed the loan to the extent of an amount of Rs. 1,10,00,000/- (Rupees One Crore Ten Lakhs) to the CD. Ld. Counsel could draw our attention to the statement of bank accounts of the FC in this regard which is placed on record as Annexure (page Nos. 81-82) to the application. The relevant excerpt of the statement reads thus:
| Date | Reference Number | Narration | Withdrawal | Deposit | Closing Balance |
|---|---|---|---|---|---|
| 21-02-2023 | DIG20230221210127807 00003 | RTGS Dr-KVBL0003102- Panchratan Mercantile Pvt Ltd-HEAD OFFICE E-ESFBR5202302215314 0852-1 | 20,00,000.00 | - | 87,081.23 |
| 23-02-2023 | 32822202302231000100 468670 | RTGS Cr-HDFC0000923- ZENITH PORTFOLIO PVT LTD-BCL ENTERPRISES LTD-HDFCR5202302238 5272330 | - | 25,00,000.00 | 25,87,081.23 |
| 23-02-2023 | DIG20230223161618056 00000 | RTGS Dr-KVBL0003102- Panchratan Mercantile Pvt Ltd-HEAD OFFICE E-ESFBR5202302235315 7774-1 | 22,00,000.00 | - | 3,87,081.23 |
| 27-02-2023 | DIG20230227162610534 00000 | NEFT Dr-N05823001779 8812-kishore kargeti -DCBL0000046-HEAD OF FICE-1 | 719.00 | - | 3,86,362.23 |
| 27-02-2023 | DIG20230227173051651 00003 | RTGS Dr-HDFC0000271- win over cancer-HEAD OFFICE-ESFBR5202302 2753196913-1 | 3,00,000.00 | - | 86,362.23 |
| 28-02-2023 | DIG20230228122740073 00000 | NEFT Dr-N05923001782 8076-Modem Advertising- MAHB0000905- HEAD OFFICE-1 | 8,355.00 | - | 78,007.23 |
| 28-02-2023 | DIG20230228123135124 00003 | NEFT Dr-N05923001782 8101-kishore kargeti -DCBL0000046-HEAD OF FICE-1 | 163.00 | - | 77,844.23 |
| 28-02-2023 | 32822202302281000100 661243 | RTGS Cr-HDFC0000923- ZENITH PORTFOLIO PVT LTD-bcl enterprises hd-HDFCR5202302288 6584572 | - | 50,00,000.00 | 50,77,844.23 |
| 28-02-2023 | DIG20230228181709962 00000 | RTGS Dr-IBKL0000163- K L M Holdings Pvt Ltd-HEAD OFFICE-ESFB R5202302285320105-1 | 50,00,000.00 | - | 77,844.23 |
| 01-03-2023 | 32822202303011000600 686667 | RTGS Cr-HDFC0000923- ZENITH PORTFOLIO PVT LTD-BCL ENTERPRISES LTD-HDFCR5202303018 6717970 | - | 10,00,000.00 | 10,77,844.23 |
| 01-03-2023 | DIG20230301120243642 00001 | RTGS Dr-ICIC0000911- MANGALAM EDU GATE-II EAD OFFICE- ESFBR5202 3030153214646-1 | 9,00,000.00 | - | 1,77,844.23 |
From the aforementioned bank statement, it is clear that there is a disbursement of a loan by the FC to the CD. As can be seen from part IV of the petition, the CD committed default in repaying the loan on 04.06.2023. The Part-IV of the petition reads thus:
Part - IV
30453251970- 1 1,10,00,000 TOTAL
30453251970- 1 1,10,00,000 TOTAL 2.The Financial Creditor has paid an amount of Rs. 1,10,00,000/- (Rupees One Crore Ten Lakh Only) to the Corporate Debtor, as Loan repayable on Demand, on terms and conditions as contained in the Loan Agreement dated 04.03.2023 at an interest rate of 12% p.a. and a penal interest of @ 0.5% per month, chargeable from the date of disbursement of loan to the Corporate Debtor.
3.The Corporate Debtor understands and agrees that he will be liable to pay interest on the Loan amount of Rs. 1,10,00,000/- (Rupees One Crore Ten Lakh Only) at the rate of 12% p.a. and a penal interest of @ 0.5% per month on late payment, which will be charged by the Financial Creditor on the total loan amount.
4.The Corporate Debtor undertakes to pay back the loan amount along with interest at the rate mentioned hereinabove on expiry of 3 months from the date of credit of the entire loan amount to the borrower's account, i.e. on 04.06.2023.
5.It is been agreed and understood by the Corporate Debtor that Penal Interest @0.5% p.m will be charged in case of late repayment of loan along with interest.
6.That as there was a default in repayment of the said facilities, the amount of the Corporate Debtor has been declared as a Non-Performing Asset with the effect from 04.07.2023 in accordance with the directions or guidelines issued by the Reserve Bank of India. Accordingly, on 04.07.2023 the total amount due and payable by the Corporate Debtor to the Financial Creditor was Rs. 1,14,52,840/- (Rupees One Crore Fourteen Lakhs Fifty-Two Thousand Eight Hundred Forty Only) 7. That Corporate Debtor again approached the Financial Creditor and made a request to extend the loan repayment term by 1 month. The said request of Corporate Debtor has been accepted by the Financial Creditor on the representations and warranties of the Corporate Debtor that no further extension will be asked for by the Corporate Debtor or allowed by the Financial Creditor. 8. To make the terms legally enforceable, Loan Extension Agreement Dated 08.06.2023 has been executed between Financial Creditor and Corporate Debtor wherein Financial Creditor made Corporate Debtor understood that this extension is a one-time extension and if the loan is not repaid in full within such extended period, the Corporate Debtor will have the right to use all remedies under law to recover the loan amount along with the interest thereof, at the sole cost of the Corporate Debtor. 9. Therefore, on the basis of the above-mentioned understanding, Financial Creditor agreed to extend the maturity due date for repayment of loan by 1 month i.e., from 04.06.2023 to 04.07.2023. 10. However, no payment was made by the corporate debtor, therefore as on 04.07.2023 the total amount due and payable by the Corporate Debtor to the Financial Creditor was Rs. 1,14,52,840/- (Rupees One Crore Fourteen Lakhs Fifty-Two Thousand Eight Hundred Forty Only).
2.AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED (ATTACH THE WORKINGS FOR COMPUTATION OF AMOUNT AND DAYS OF DEFAULT IN TABULAR FORM)The Default of Rs. 1,14,52,840/- (Rupees One Crore Fourteen Lakhs Fifty-Two Thousand Eight Hundred Forty Only) Comprising of Financial Debt amounting to Rs. 1,10,00,000/- (Rupees One Crore Ten Lakhs Only) and interest of Rs.4,52,840/- calculated @ 12% per annum from the due date of payment of the financial debt upto 04.07.2023. Date on which the default occurred-04.07.2023 That it is submitted that the present application is well within the limitation period. Working for computation of Amount and days of default in tabular form is enclosed as ANNEXURE- D
Ld. Counsel appearing for the CD did not dispute the disbursement of the loan amount as also the date of default. These are two factors that we need to verify and satisfy us about while taking a decision regarding admission of a petition filed under Section 7 of the IBC, 2016. As has been noted above the only contention raised on behalf of the CD is that the date of default was originally 04.06.2023, but on account of the extension of the same by one month by the FC, it could shift to 04.07.2023 and before the expiry of three months, the account of the CD could not have been declared as NPA and when the account was not NPA till the date of filing of the present petition, the petition is not maintainable. As can be seen from Section 7 of the IBC, 2016, it does not take note of the date of NPA. What the Tribunal needs to satisfy itself about is that there was disbursement of loan and the same is defaulted to be paid by the CD. Two conditions are admittedly satisfied in the present case. In para 2 & 3 of the reply, the CD has categorically admitted the disbursement of the loan. The paras reads thus:
“2.That the Corporate Debtor had availed loan facility from the Financial Creditor to utilize the finds for investment purposes. The Corporate Debtor, through loan from dated 27.02.2023, applied for the loan and the Financial Creditor sanctioned Rs. 1,10,00,000/- (Rupees One Crore Ten Lakh Only) as loan to the corporate debtor.
3.That due to unforeseen circumstances, the investments on which the CD used the loan amount did not fructify and hence on 04.06.2023, the date when the loan repayment became due, the CD requested the FC to grant 1 month’s extension for repayment of the loan. The said request of the Corporate Debtor was accepted by the Financial Creditor.”
In the wake of the above, we are left with no option but to admit the present petition and in view of the provisions of Section 7 (6) of IBC, 2016, the CIRP qua the CD stands commenced. Ordered accordingly.
In the wake, moratorium as provided under Section 14 of IBC, 2016 is declared qua the CD and as a necessary consequence thereof the following prohibitions are imposed, which must be followed by all and sundry:
The institution of suits or continuation of pending suits or proceedings against the Respondent including execution of any judgment, decree, or order in any court of law, tribunal, arbitration panel or other authority;
Transferring, encumbering, alienating or disposing of by the Respondent any of its assets or any legal right or beneficial interest therein;
Any action to foreclose, recover or enforce any security interest created by the Respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;
The recovery of any property by an owner or lessor, where such property is occupied by or in the possession of the Respondent.
As proposed by the Petitioner, Mr. Kamal Ahuja, having Registration No. IBBI/IPA-002/IP-N01025/2020-2021/13389 (e-mail id: kamal.ahuja@corporateconsultant.in) Mobile No. 9811259140 is appointed as IRP, subject to the condition that no disciplinary proceeding is pending against him and disclosures as required under IBBI Regulations, 2016 are made by him within a period of one week from this Order. It is further ordered that Mr. Kamal Ahuja, IRP (Registration No. IBBI/IPA-002/IP-N01025/ 2020-2021/13389) shall take charge of the CIRP of the Corporate Debtor with immediate effect and would take steps as mandated under the IBC specifically under Section 15, 17, 18, 20 and 21 of IBC, 2016 read with extend provisions of IBBI (Insolvency Resolution of Corporate Persons) Regulations, 2016.
The Petitioner is directed to deposit Rs. 2,00,000/- only with the IRP to meet the immediate expenses. The amount, however, will be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Financial Creditor.
A copy of this Order shall immediately be communicated by the Registry/Court Officer of this Tribunal to the Petitioner /Financial Creditor, the Respondent/Corporate Debtor and the IRP mentioned above.
In addition, a copy of this Order shall also be forwarded by the Registry/Court Officer of this Tribunal to the IBBI for their records.
The Ld. Counsel for the parties categorically submitted that there is no relationship except that of the borrower and lender between them and the present petition is not a collusive petition. The petition stands disposed of.