The tribunal established that evidence of default justified the initiation of CIRP under the IBC, despite the Corporate Debtor challenging the validity of the creditor.

ORDER

Per: Prabhat Kumar (Technical)

1. This Company Petition C.P. (IB) 290/2023 is filed under section 7 of the Insolvency and Bankruptcy Code, 2016 (“IBC/Code”) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Omkara Assets Reconstruction Private Limited CIN:U67100TZ2014PTC020363 ("hereinafter referred to as Applicant/ Financial Creditor"), seeking to initiate Corporate Insolvency Resolution Process (CIRP) against M/s Neo Capricorn Plaza Private Limited CIN:U55102MH2004PTC187649 ("hereinafter referred to as Respondent/Corporate Debtor").

2. The Applicant has claimed a default of Rs. 120,10,96,388/- (Rupees One Hundred Twenty Crores, Ten Lacs, Ninety-Six Thousand and Three Hundred Eighty-Eight Only) as on 27.02.2023. The date of default in respect of Loan & ECLGS facility is stated to be 15.10.2022.

3. The Applicant has submitted that on 26.12.2017, the Piramal Finance Limited had executed a loan agreement with the Corporate Debtor and Gstaad Hotels Private Limited (“Gstaad”) granting a loan facility Upto Rs. 600.00 crores (Rupees Six Hundred Crore), out of which the Corporate Debtor was granted a term loan of Rs. 100.00 Crores. accordingly, the following documents were executed by the Corporate Debtor in favor of the Applicant to secure the said facility, which was required to maintain in favour of the Security Trustee (for the benefit of the Lender) ("Security") to secure the Outstanding Amounts until the final maturity date, the borrower shall be required to maintain the following security as set out below in favour of the Secruity Trustee (for the benefit of the Lender):

a. First and exclusive charge by way of an equitable mortgage over CP Land and Crown Plaza Hotel under a memorandum of deposit of title deeds ("Crown Plaza MODT");

b. First charge by way of an equitable mortgage over JW Land and JW Marriott Hotel under a memorandum of deposit of title deeds ("JWM MODT"). It is clarified herein that a charge has been created in favour of Global Hospitality Licensing S.A.R.L. and such charge over the JW Land and JW Marriott Hotel in favour of Global Hospitality Licensing S.A R.L. will be modified to be a second charge pursuant to creation of a first charge in favour of the Lender;

c. First charge by way of hypothecation over the Receivables and the Escrow Accounts to be created under a deed(s) of hypothecation ("Deed of Hypothecation"). It is clarified herein that a charge has been created over the GHPL Receivables in favour of Global Hospitality Licensing S.A R.L. and such charge in favour of Global Hospitality Licensing S.A R.L. will be modified to be a second charge pursuant to creation of a first charge in favour of the Lender;

d. First and exclusive charge by way of pledge over the Pledged Shares under a share pledge agreement ("Share Pledge Agreement");

e. Corporate guarantee by ARHPL ("Corporate Guarantee");

f. Personal guarantee by the individual Promoters ("Personal Guarantee") and g. Demand promissory note executed by the Borrowers for the benefit of the Lender DPN").

3.1 On 06.04.2018, the Piramal Finance Limited and PCHFL were got merged pursuant to Order passed by this Tribunal and Piramal Finance Limited’s name was changed to Piramal Capital PCHFL The Financial Debt, in question, was disbursed by M/s Piramal Capital and Housing Finance Limited (“PCHFL”), and consequent to merger, the Corporate Debtor became creditor of PCHFL.

3.2 By an Assignment dated 22.03.2019 and 24.06.2019 entered between PCHFL and PHL Finvest Private Limited (“PHL”), {which subsequently amalgamated into Piramal Enterp