IN THE NATIONAL COMPANY LAW TRIBUNAL: NEW DELHI

PRINCIPAL BENCH

ITEM No. 1

IN THE MATTER OF:

Ambica Enclave Private Limited …. Petitioner

v.

Proplarity Infrastructure Private …. Respondent

Limited

Order U/s. 7 of IBC, 2016 Order delivered on 13.03.2024

CORAM:

JUSTICE RAMALINGAM SUDHAKAR

HON’BLE PRESIDENT

SH. AVINASH K. SRIVASTAVA

HON’BLE MEMBER (TECHNICAL)

(HEARING THROUGH PHYSICAL MODE & VC)

PRESENT:

For the Petitioner : Mr. Alok Tripathi, Adv. on VC

For the Respondent : Adv. Abhishek Anand, Adv. Ashish

Choudhury, Adv. Abhishek Arora

ORDER

DICTATED IN OPEN COURT

1. This petition has been filed under Section 7 of IBC, 2016 by four

Financial Creditors against the Corporate Debtor claiming that the Corporate Debtor in this case has enjoyed the benefit of loans raised from four Financial Creditors on different dates and has failed to discharge its liabilities and they are unable to service the debt and there is default. The details of loan are marked as Annexure-P1 (Collectively)

which is at page 29-74 of the petition.

2. For the purpose of the present case, we take up the loan agreement of

M/s. Divya TIE-UP Pvt. Ltd. dated 13.10.2016. The amount lent to the Corporate Debtor under the various loan agreements is not disputed, so also is the rate of interest @ 30% per annum which is not disputed. Even as of today, the Corporate Debtor does not dispute the balance amount as per their own balance sheet. It is also on record that the Corporate Debtor has been paying certain amount of interest prior to

agreement. But post agreement, there appears to be no interest paid.

3. Be that as it may, on the basis of these agreements, the Financial Creditor now claims that the Corporate Debtor has defaulted in paying the amount and therefore, Section 7 petition has been initiated and initially filed with certain defects and therefore, on 11.09.2023, the following order was passed:-

As prayed by the Ld. Counsel appearing for the Petitioner one week’s time is granted for clarifying the date of default mentioned in the affidavit incorrectly. At his request, list the matter on

03.10.2023.

In the meantime, Ld. Counsel for the Petitioner shall also file a copy of the report of default to be submitted before the NeSL.

4. The defects pointed out by this Tribunal were rectified and amended petition was filed on 18.12.2023 and cleared by the Registry on 03.01.2024. As per the amended petition at page 13 & 14, the default amount and date of default is stated as follows:-

5. According to the Ld. Counsel for the Financial Creditor, the default occurred on 31.03.2018 for which he relied upon the balance-sheet of the Corporate Debtor of the year 2017-18 which is at page 93 of the Petition. It is also pleaded that no further balance-sheet has been filed by the Corporate Debtor. On this premise, Ld. Counsel for the Financial Creditor pleaded that there is admitted debt and there is default as reflected in the balance-sheet and therefore, the present case should be admitted.

6. Per contra, Mr. Abhishek Anand, Ld. Counsel for the Corporate Debtor referred to one of the loan agreements, more particularly clause 2 (at page 32 of the Petition) which is same in all agreements and the same is extracted below:-

7. Ld. Counsel for the Respondent pleaded that the debt amount taken as loan is not disputed and as reflected in their balance-sheet of 2017-18. However, it is not admitted to reckon the date of default as 31.03.2018 as indicated at page 14 of the petition, since there is no demand in writing by the Financial Creditor at any point of time to which the Financial Creditor fairly stated that there is no demand in writing but they have made oral demands which is outright disputed by the Corporate Debtor.

8. In the absence of any material to show that there has been a demand and refusal by the Corporate Debtor to pay the amounts in terms of the loan agreement, we can infer that the loan agreement still subsists and the parties may work out the remedies as per the terms & conditions contained in the loa