Capri Global Capital Ltd vs Value Infracon India Pvt. Ltd

(Arising out of Order dated 17th December, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi in (IB)-22(PB)/2018)

IN THE MATTER OF:

Capri Global Capital Limited ...Appellant

Vs.

Value Infracon India Pvt. Ltd. (Through its Resolution Professional Mr. Sanjay Kumar Singh) & Anr. ...Respondents

Present: For Appellant: - Mr. Alok Dhir, Ms. Varsha Banerjee, Mr. Milan Singh Negi, Ms. Juhi Bhambhani and Mr. Kunal Godhwani, Advocates.

For Respondents:- Mr. Sanjay Kumar Singh, R.P in person. Mr. Mohd. Azeem, Advocate for RP.

Mr. Sanjeev Manchanda, Advocate for Madows Vista (Home Buyers).

Mr. Vikas Tiwari and Mr. Neeraj Kr. Gupta, Advocates for R-2.

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

The Appellant- 'Capri Global Capital Limited' one of the 'Financial

Creditor' has challenged the order dated 17th December, 2018 passed by

the Adjudicating Authority (National Company Law Tribunal), Principal

Bench, New Delhi, which reads as follows:

2

"O R D E R

CA-1131(PB)/2018 We have heard the arguments on the application CA-1131(PB)/2018 and expect the RP to act in accordance with the agreement dated 19.09.2014 and allocate the voting share to the CoC accordingly. The order is necessitated because other two petitions under section 7 of IBC namely C.P. No. (IB)- 770(PB)/2018 & (IB)- 771(PB)/2018 against the other two corporate debtors (sister concern) namely Value Infrabuild India Pvt. Ltd. and Value Infratech India Pvt. Ltd. have also been filed. They have mortgaged 469 and 385 units of their respective property with the Capri Global Capital Limited whereas the corporate debtor in the present case has mortgaged only 30 units of its property. The RP could not have allocated voting share to the Capri Global Capital Limited by taking total loan amount of all the three corporate debtors whereas only one of them is involved in the present proceedings. The CoC would tilt in favour of Capri Global as against the voting share of Home Buyers' if the whole loan amount of three companies is clubbed. We expect the RP to act fairly and dispassionately which is found wanted in the present case because he was aware after the filing of the present application that the aforesaid two matters are pending

Company Appeal (AT) (Insolvency) No. 29 of 2019 3

consideration before the NCLT as he has given consent to act as IRP even in those two matters. Reply be filed by any other contender. List for further consideration on 15.01.2019."

2. The grievance of the Appellant is that the 'Resolution Professional'

has reallocated voting share to the Appellant in the 'Committee of

Creditors' by considering only the amount disbursed to the Corporate

Debtor (and not the amount disbursed to other Co-borrowers) as

against the total loan amount which is due and payable by the

Corporate Debtor in terms of the Agreement between the parties.

3. The case of the Appellant is that loan Agreement dated 17th

September, 2014 was reached and signed whereby a sum of Rs.37.50

Crores was sanctioned to the 'Corporate Debtor', 'Value Infratech India

Pvt. Ltd.' and 'Value Infrabuild India Pvt. Ltd.' against which the

'Corporate Debtor' as well as 'Value Infratech India Pvt. Ltd.' and 'Value

Infrabuild India Pvt. Ltd.' are jointly and severally liable.

4. The Appellant is aggrieved by the Impugned Order in terms of

which the entire claim of Rs. 76,75,46,530/- of the Appellant as initially

accepted (upto to the 5th 'Committee of Creditors') has been reduced to

Rs. 1,86,00,000/- (before the 6th 'Committee of Creditors'), thereby

resulting in reduction of the voting share of the Appellant from 51.55%

to 2.35%.

Company Appeal (AT) (Insolvency) No. 29 of 2019 4

5. Learned counsel for the Appellant submitted that the loan

agreement dated 17th September, 2014 having executed between the

Appellant, 'Value Infrabuild India Pvt. Ltd.', 'Value Infracon India Private

Limited'-(Corporate Debtor) and 'Value Infratech India Pvt. Ltd.' wherein

all the 3 entities were Co-borrowers. In terms of Clause 2.4 of the Loan

Agreement, 'Value Infracon India Private Limited'- (Corporate Debtor) is

jointly and also severally liable to repay all the outstanding dues of the

Appellant herein. In terms of the loan agreement dated 17 th September,

2014, the Co-borrowers gave a request for disbursal in the name of the

3 Co-borrowers without affecting their joint and several obligations to

pay the entire dues.

6. Admittedly, 'Value Infracon India Pvt. Ltd.'- ('Corporate Debtor')

defaulted in repayment of outstanding dues of the Appellant, the

Appellant has issued notice under Section 13(2) of the 'SARFAESI Act,

2002' on 25th February, 2017. The liability of the Appellant qua the

'Corporate Debtor' admittedly cannot be jointly calculated with two

other entities namely-- 'Value Infratech India Pvt. Ltd.' and 'Value

Infrabuild India Pvt. Ltd.', they not being the 'Corporate Debtor' in the

present case.

7. The 'Corporate Debtor'- ('Value Infracon India Pvt. Ltd.') facing

separately triggered application under Section 7, the Appellant cannot

claim the dues which is payable by other Co-borrowers, the other

Company Appeal (AT) (Insolvency) No. 29 of 2019 5

'Corporate Debtor' in the 'Resolution Process' against the present

'Corporate Debtor'.

8. In this connection, one may notice the term loan facility for Rs.

37,50,00,000/- which were disbursed by the Appellant. On receipt of

such loan by 'Value Infrabuild India Pvt. Ltd.', 'Value Infracon India Pvt.

Ltd.' and 'Value Infratech India Pvt. Ltd.', they intimated the Appellant

by letter dated 19th September, 2014 that the amount of Rs.

37,20,00,000/- be paid by High Value Cheque/ Pay Order/ Account

Transfer separately against each name, as extracted hereunder:

Company Appeal (AT) (Insolvency) No. 29 of 2019 6

9. The amount having been separately disbursed as per request of

three different entities who signed jointly, it is clear that individual

entities like 'Value Infrabuild India Pvt. Ltd.' received a sum of Rs.

29,55,00,000/-; 'Value Infracon India Pvt. Ltd.' received a sum of Rs.

1,00,00,000/- and 'Value Infratech India Pvt. Ltd.' received a sum of Rs.

6,65,00,000/- in their respective Bank Accounts. Having received such

amounts separately, the Appellant cannot claim all the payments from

the 'Corporate Debtor' pursuant to the Loan Agreement dated 17th

September, 2014 whereinafter 19th September, 2014 letter was issued as

extracted above.

10. In view of the fact that the three entities were provided amounts

separately in their respective Bank Accounts, the Adjudicating Authority

rightly held that the Appellant as a 'Financial Creditor' can claim its

voting shares based on the amount actually disbursed in favour of 'Value

Infracon India Pvt. Ltd.'- ('Corporate Debtor').

11. We find no merit in this appeal. It is accordingly dismissed. No

costs.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) Member(Judicial)

NEW DELHI 14th May, 2019 AR

Company Appeal (AT) (Insolvency) No. 29 of 2019