Kuldip Kumar Kareer, Member (Judicial)
1. The present Petition has been under Section 7 of the Insolvency Bankruptcy Code, 2016 (hereinafter referred to as "IBC") by M/s. Caparo Financial Solutions Limited (hereinafter called as “Financial Creditor”) praying inter-alia for initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor namely M/s Joister Infoserve Pvt. Ltd. (hereinafter called as "Corporate Debtor") by invoking the provisions of Section 7 Insolvency and bankruptcy code (hereinafter called "Code") for resolution of an unresolved Financial debt of Rs. 4,01,26,861/- (Rupees Four Crores One Lacs Twenty-Six Thousand Eight Hundred and Sixty One Only) as on 31.08.2022.
The submissions of the Financial Creditor are as follows:
2. The Applicant is a Non-Banking Financial Company under the provisions of the Companies Act, 1956, registered and having been granted registration under the provisions of Section 45 IA of Reserve Bank of India Act, 1934 and having its registered office at 101-104, Naurang House, 21 Kasturba Gandhi Marg, New Delhi- 110001.
3. The Corporate Debtor is a Borrower Company duly incorporated under the Companies Act, 1956 had approached the Applicants requesting the grant of a Finance Loan to the tune of Rs. 2,00,00,000/- (Rupees Two Crores Only)
4. Pursuant to the specific representations inter – alia, with respect to adherence of the terms of repayment of the said loan, the Applicant had sanctioned loan vide Sanction Letter dated 15th September, 2017 in favour of the Corporate Debtor. Thereafter, a Term Loan Agreement dated 15th September, 2017, Deed of Pledge of Shares dated 15/09/2017 for 100% pledge of shares of M/S. Joister Infoserve Pvt. Ltd. and M/S. Joister Infomedia Pvt Ltd, Deed of Personal Guarantee and Indenture of Mortgage dated 21/09/2017 were executed between the Applicant and Corporate Debtor.
5. Subsequent to the execution of Loan related documents, the above said financial Facility was disbursed to the extent of Rs. 2,00,00,000/- (Rupees Two Crores Account Only).
6. In order to secure the above said Facility, the Corporate Debtor through its Director / Authorised Signatory executed Indenture of Mortgage Deed dated 21/09/2017 for creating security interest on the following Immoveable Properties / Receivables wherein the charge has been duly registered with the office of sub - registrar at Borivali No. 6 in favour of CFSL for the following property:
a) Flat No. 605 & 606, B Wing, 6th Floor, Narendra Park CHS Ltd., Anand Nagar, Dahisar (East), Mumbai — 400068.
7. The assets over which security has been created in favour of the Applicant is set out as under are hereinafter collectively referred to as "Secured Asset".
a. Flat No. 605 & 606, B Wing, 6th Floor, Narendra Park CHS Ltd., Anand Nagar, Dahisar (East), Mumbai — 400068. Indenture of Mortgage dated 21/09/2017)
b. 100% pledge of shares of M/S. Joister Infoserve Pvt. Ltd. and M/S. Joister Infomedia Pvt Ltd.
c. Personal Guarantee of Mr. Nikunj Kampani, Mrs. Manisha Kampani, Mr. Ramchandra Solanki and Mrs. Alpa Solanki and Corporate Guarantee of Joister Infomedia Pvt. Ltd. (Deed of Personal Guarantee dated 15th September, 2017).
8. However, the Corporate Debtor failed to comply the repayment schedule as agreed. On 31.05.2022, the total amount outstanding payable to the Applicant by the Corporate Debtor was Rs. 4,01,26,861/- (Rupees Four Crores One Lakh Twenty-Six Thousand Eight Hundred and Sixty-One Only). Hence the Petition.
Reply filed by the Corporate Debtor:-
9. The Corporate Debtor had filed their Affidavit in Reply (“Reply”) and denied all the allegations and averments made in the Company Petition filed by the Financial Creditor against the Corporate Debtor.
10. According to the Corporate Debtor, the Petitioner was approached for granting a loan of Rs. 8 crores. The Financial Creditor agreed to advance a sum of Rs. 6 crores, but a loan of Rs. 2 crores were only disbursed. As the Financial Creditor did not honour the commitment made by it, the expansion plan and financial calculations of the Corporate Debtor were severely affected resulting in loss to the Corporate Debtor.
11. As the result, the Corporate Debtor could not achieve its revenue targets and fell into financial crisis. Therefore, no case is made out for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor. In the end, the Corporate Debtor has prayed for the dismissal of the Petition.
ANALYSIS AND FINDINGS
12. We have heard the counsel for the parties and gone through the records.
13. On perusal of the records reveals that the Petitioner advanced a loan of Rs. 2 crores to the Corporate Debtor vide sanction letter dated 15.09.2017. The term loan agreement was also executed between the parties on 15.09.2017 itself. To secure the payment of the loan, the Corporate Debtor executed Deed of pledge of shares dated 15.09.2017. The Corporate Debtor further executed an Indenture of mortgage in favour of the Petitioner in respect of Flat No. 605 & 606 situated at Dahisar (East), Mumbai.
14. It has been claimed by the Financial Creditor in Part IV of the Petition that the first default took place on 13.03.2020 and the second default occurred on 31.10.2020. It has also been claimed that the principal sum of Rs. 1,20,15,741/-was outstanding against the Corporate Debtor on account of principal and a sum of Rs. 82,50,360/- was outstanding on account of interest as on 31.08.2022.
15. Admittedly, the default took place in this case on 31.03.2020 and 31.10.2020 as stated in Part IV of the Petition. Section 10 (A) of the Code provides that no application for initiation of Corporate Insolvency Resolution Process of the Corporate Debtor shall ever be filed for any default arising between 25.03.2020 and 24.03.2021. That being so, the present Petition is clearly barred by Section 10(A) of the Code as the default in this case took place on 31.03.2020 and 31.10.2020, as stated in the Petition itself.
16. As a result of the discussion, the Petition is dismissed being barred under Section 10(A) of the Code. However, this order shall not preclude the Petitioner from resorting to another remedies for the recovery of the outstanding amount, if any, as per the law as with the dismissal of the present Petition, the financial debt shall not be treated to have extinguished.
