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2024 Supreme(Online)(NCLT) 1811
NATIONAL COMPANY LAW TRIBUNAL
Ms. Reeta Kohli, Member (Judicial), Ms. Madhu Sinha, Member (Technical)
Omkara Assets Reconstruction Company Private Limited – Appellant
Versus
Goldsouk Infrastructure Private Limited – Respondent
Company Petition No. 506/IBC/MB/2022
For the Petitioner:Counsel for the Petitioner
For the Corporate Debtor: Adv. Reena Jain Malhotra (VC)
Jurisdiction under Insolvency and Bankruptcy Code, distinct from arbitration, affirmed; established debt exceeds threshold for CIRP admission.
Headnote:(A) Insolvency and Bankruptcy Code, 2016 - Section 7 - Initiation of Corporate Insolvency Resolution Process - Petition filed for initiation against Corporate Debtor due to non-repayment of financial debt - Debt and default established through documentation. (Paras 1, 4, 5, 6)
(B) Jurisdiction and Procedural Compliance - Objections regarding arbitration jurisdiction and authorization deemed procedural - Admission of petition appropriate due to established debt exceeding threshold under IBC. (Paras 3, 6, 7)
Facts of the case:
The Financial Creditor claims repayment failure by the Corporate Debtor of Rs. 40,39,20,414/- under terms of a Term Loan Agreement, leading to a default classification and subsequent statutory notices issued for recovery. The Corporate Debtor admits liability but raises procedural objections related to authorization and claims for arbitration, underlying disputes reflecting disputed amounts and procedural deficiencies.
Findings of Court:
The petition for initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor is substantiated - Debt acknowledged in prior financial statements exceeds Rs. 1,00,00,000/- and meets the threshold for initiation under the Code.
Issues: Whether the Corporate Debtor's claims of jurisdictional incompetence and procedural deficiencies render the petition invalid.
Ratio Decidendi: The bench held that jurisdiction under the IBC is distinct from arbitration agreements in contract law and that failure to adhere to procedural requirements does not negate the admitted debt.
Result: The Company Petition is admitted and CIRP initiated against the Corporate Debtor.
| Table of Content |
|---|
| 1. petition filed for debt recovery due to default. (Para 1 , 2) |
| 2. corporate debtor challenges jurisdiction and authorization. (Para 3 , 4 , 5) |
| 3. court assesses procedural compliance and debt existence. (Para 6 , 7 , 8) |
| 4. legal grounds for admitting the petition established. (Para 9 , 10) |
ORDER
Per: Reeta Kohli, Member (Judicial)
I. This Company Petition is filed by Omkara Assets Reconstruction Company Private Limited (hereinafter referred as “Petitioner/Financial Creditor”) on 27.04.2022 seeking to initiate Corporate Insolvency Resolution Process (hereinafter referred as “CIRP”) against Goldsouk Infrastructure Private Limited (hereinafter called “Corporate Debtor”) by invoking the provisions of Section 7 of the Insolvency and Bankruptcy code, 2016 (hereinafter called “Code”) read with Rule 4 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, for a Financial Debt of Rs. 40,39,20,414/- with the date of default being 10.10.2022.
II. Facts of the Financial Creditor-
1. The Financial Creditor filed the present Company Petition due to the Corporate Debtor's inability to repay the debt aggregating to Rs. 40,39,20,414/- as on February 21, 2022.
2. DMI Finance Private Limited (DMI FPL) (the original Petitioner) and DMI Housing Finance Private Limited (DMI HFPL) sanctioned a Term Loan Facility for an aggregate amount of Rs. 16,21,00,000/- to the Corporate Debtor under a Term Loan Agreement dated 31.05.2016 (TLA). The said Term Loan Agreement was executed by and amongst the Corporate Debtor as the Borrower, Aerens Goldsouk International Limited and Visage Properties Private Limited as corporate guarantors, Amit Gupta and Ashish Gupta as personal guarantors, along with DMI FPL and DMI HFPL as lenders, with DMI HFPL acting as the security trustee.
3. The relevant Clauses of the said Term Loan Agreement are Clauses 2.1, 2.5, 3, and 7. Clause 2.1 explicitly provided for the sanctioned Term Loan amount, Clause 2.5 provided for interest rates (18% per annum with additional interest of 1% on default and penal interest at 10% on outstanding amounts), Clause 3 provided for securities and guarantees to secure repayment, and Clause 7 stipulated events of default and their consequences.
4. The sanction and disbursal of the Term Loan Facility is further established through various documents executed on 31.05.2016, including the Security Trustee Agreement, Deeds of Hypothecation, Deeds of Corporate and Personal Guarantees, and Notices of Drawal for Rs. 15,96,06,671/- issued by the Corporate Debtor to DMI FPL and Rs. 10,00,000/- issued to DMI HFPL.
5. As stated by the Financial Creditor, after making certain repayments, the Corporate Debtor defaulted in adhering to the terms of the Term Loan Agreement. Consequently, the Corporate Debtor's loan account was classified as a Non-Performing Asset (NPA) with effect from 14.06.2018. Despite repeated reminders and follow-ups, the Corporate Debtor failed to comply with the demands raised by DMI FPL and DMI HFPL.
6. DMI FPL and DMI HFPL issued a statutory demand notice dated 16.07.2018 under Section 13(2) of the SARFAESI Act calling upon the Corporate Debtor, corporate guarantors, and personal guarantors to pay an outstanding amount of Rs. 18,68,94,348/- as on 13.07.2018, along with further interest at the contractually agreed rate. The Corporate Debtor made a representation to this notice which was dealt with by DMI HFPL.
7. As alleged, as the Corporate Debtor failed to repay the outstanding amount, the Security Trustee initiated further measures under the SARFAESI Act and took physical possession of the mortgaged property situated at Jaipur (Secured Asset) on 12.04.2019.
8. The Financial Creditor further submitted that to recover outstanding dues, a Lease Agreement was executed on 22.07.2019 between the Corporate Debtor, DMI FPL, DMI HFPL as Security Trustee, Metroline Townships Private Limited as Sub-lessor, Aerens Gold Souk International Limited as Lessors, and Bundl Te
