Neil Industries Limited vs Jawan Mining And Construction ...

Company Appeal (AT)(Insolvency) No. 1225 of 2022

[Arising out of order dated 24.06.2022 passed by the Adjudicating Authority, National Company Law Tribunal, Jaipur Bench in CP(IB) No. 64/7/JPR/2019]

IN THE MATTER OF:

Neil Industries Limited, 88B, Ground Floor, Lake View Road, Kolkata - 700029 Corporate Office at 402-403, Kan Chambers, 14/113, Civil Lines, Kanpur - 208001 ...Appellant

Versus

Jawan Mining and Construction Equipments Private Limited, Katewa Sedan, Road No.3, Jhunjhunu - 333001 Rajasthan ...Respondent

Present:

For Appellant: Mr. Amol Vyas and Mr. Shubham Bharara, Advocates

For Respondent: None

JUDGMENT

[Per: Barun Mitra, Member (Technical)]

The present appeal filed under Section 61 of Insolvency and Bankruptcy

Code, 2016 ("IBC" in short) by the Appellant arises out of the Order dated

24.06.2022 (hereinafter referred to as "Impugned Order") passed by the

Adjudicating Authority (National Company Law Tribunal, Jaipur Bench) in CP (IB)

No. 64/7/JPR/2019. By the impugned order, the Adjudicating Authority has

Company Appeal (AT)(Insolvency) No. 1225 of 2022

1 returned the Company Petition filed under Section 7 of the IBC by the

Appellant/Financial Creditor seeking to bring the Corporate Debtor/Respondent

under the rigours of Corporate Insolvency Resolution Process ('CIRP' in short) for

being factually deficient particularly in respect of loan account. Aggrieved by this

impugned order, the present appeal has been preferred by the Financial Creditor.

2. Outlining the facts of the case, the Learned Counsel for the Appellant

submitted that the Appellant-Neil Industries Ltd. is a Non-Banking Financial

Company ("NBFC" in short) which had advanced unsecured business loan to the

tune of Rs.5,95,00,000/- to the Corporate Debtor-Jawan Mining and

Construction Equipment Pvt. Ltd. The details of the loan sanctioned as submitted

is as follows: -

Particulars Loan 1 Loan 2 Loan 3

Amount 25,00,000 4,70,00,000 1,00,00,000 (in Rs.)

Sanction Letter 20.05.2015 22.05.2017 15.02.2018

Rate of Interest 10% p.a. 12% p.a. 10% p.a.

Period of Loan 36 months 36 months 36 months

Repayment On-demand On-demand On-demand

3. It was further added that the Corporate Debtor in their reply affidavit before

the Adjudicating Authority clearly accepted that they had taken a loan of

Rs.5,95,00,000/- in three tranches and that the terms and conditions of the loans

was governed by the respective sanction letters. That the loan amounts were

interest bearing has also not been denied by the Corporate Debtor. The Learned

Counsel for the Appellant contended that the Respondent was under legal

Company Appeal (AT)(Insolvency) No. 1225 of 2022

2 obligation to pay the interest amount on the above loan amounts on a quarterly

basis in terms of RBI guidelines as applicable for NBFCs having an asset size

below Rs.500 crores. The Corporate Debtor having failed to maintain the requisite

financial discipline of interest payment committed a default in repayment of the

loan amount along with interest. The Appellant had issued a demand notice dated

07.01.2019 calling upon the Respondent to repay an outstanding amount of

Rs.6,44,80,166/- including an interest amount of Rs.49,80,166/- due as on

31.12.2018. As there was no response from the Corporate Debtor to the said

demand notice, the Appellant filed the Section 7 application before the

Adjudicating Authority.

4. Making further submissions, the Learned Counsel for the Appellant stated

that the Corporate Debtor while filing their reply affidavit before the Adjudicating

Authority had contended that no default had been committed in the repayment of

the loan since the period of 36 months had not elapsed in the case of two loan

tranches and hence no valid demand could have been raised as no default had

occurred. Moreover, since the repayment were to become due only after raising a

demand and no such demand having been raised, there was no default. It has

been submitted by the Learned Counsel for the Appellant that it was brought to

the knowledge of the Adjudicating Authority that the above plea of the Corporate

Debtor lacked foundation in that though the tenure of the loan amount was 36

months it was subject to the timely payment of interest on quarterly basis and

that there was breach in payment of interest amount since March 2018.

5. It has been submitted by the Learned Counsel for the Appellant that the

Adjudicating Authority has wrongly concluded that the amount outstanding does

Company Appeal (AT)(Insolvency) No. 1225 of 2022

3 not fall in the category of financial debt as it lacks the time value of money. The

reasons ascribed by the Adjudicating Authority for coming to this conclusion were

that the demand notice issued by the Financial Creditor was for a cumulative

amount without differentiating the varying interest component of the three

separate loan amounts. The Adjudicating Authority had also held that there was

variation in the manner of calculating the interest as one party made TDS

deductions on quarterly basis while the other deducted TDS on the interest paid

in March every year. The Adjudicating Authority has also recorded the findings

that the Corporate Debtor had paid interest regularly till March 2018 and that the

Financial Creditor did not file proper documents to substantiate his claims and

that there was discrepancy in the filing of supporting documents.

6. We have duly considered the arguments advanced by the Learned Counsel

for the Appellant and perused the records carefully. Though sufficient steps were

taken by the Appellant for service of notice on the Respondent, the Respondent

remained absent during all hearings and have not filed any reply affidavit.

7. This brings us to the question whether there was sufficient cause for the

Adjudicating Authority to return the application of the Financial Creditor instead

of adjudicating on the Company petition. Present is a case where it is an

undisputed fact that the Appellant in its capacity as NBFC had sanctioned three

loans to the Respondent totaling an amount of Rs.5,95,00,000/-. The three

sanction letters are placed at pages 158, 161 and 164 of the Appeal Paper Book

("APB" in short). It is also an admitted fact that the loan amounts had actually

been disbursed by the Appellant and had been credited to the accounts of the

Corporate Debtor. The Corporate Debtor has also admitted taking the said loan

Company Appeal (AT)(Insolvency) No. 1225 of 2022

4 amount before the Adjudicating Authority. As per the respective loan sanction

letters, the tenure of each of the three loans was 36 months. The sanction letters

also clearly provided that the loan was repayable on demand. The first loan was

for an amount of Rs.25,00,000/- sanctioned on 20.05.2015 with an interest of

10% per annum. The second loan amount for Rs.4,70,00,000/- was sanctioned

on 22.05.2017 with 12% interest per annum while the third loan was for

Rs.1,00,00,000/- with 10% per annum which was sanctioned on 15.02.2018. We

notice that the first tranche of loan which had been disbursed on 26.05.2015 (as

placed at page 167 of APB) had already become due having crossed the 36 months

tenure. It is the contention of the Appellant that the Corporate Debtor was also

under obligation to pay interest on a quarterly basis in terms of RBI guidelines

and that the same was not done by the Corporate Debtor. It is also the contention

of the Learned Counsel for the Appellant that in terms of the aforementioned RBI

guidelines once any one loan account of borrower/beneficiary becomes a Non-

Performing Asset, the balance outstanding under other credit facilities including

accrued interest made available to the same borrower/beneficiary also become

Non-Performing Asset. The relevant RBI guidelines have been placed at Annexure-

6 of the APB. We have also noticed that the Corporate Debtor had disputed the

fact that a default had been committed in repayment of the loan.

8. Section 5(8) of the IBC which is relevant for the present case defines

financial debt to mean a debt along with interest which is disbursed against the

consideration for the time value of money. Further, clauses (a) to (i) of Section 5(8)

delineates the nature of transactions which are included in the definition of

financial debt which includes money borrowed against payment of interest. In the

facts of the present case, the Appellant has issued a demand notice which

Company Appeal (AT)(Insolvency) No. 1225 of 2022

5 contained cumulative demand of all the three loan amounts. In the given factual

matrix, the Adjudicating Authority is required to notice as to whether the

application is complete or not and if there is a debt and the Corporate Debtor has

defaulted in the payment, whether the amount so defaulted is more than the

threshold limit of Rs. 1 lakh.

9. We are of the considered view that, prima-facie, the corpus of facts and

documents are sufficiently adequate to consider a Section 7 application. We do

not find any cogent basis for the Adjudicating Authority to have returned the

application of the Financial Creditor. The appeal is allowed. The impugned order

is, therefore, set aside. Without expressing any opinion on the merits of the claim

of the Appellant, we remand the matter back to the Adjudicating Authority to

consider the Section 7 application. The Respondent is restrained from selling

assets of the Corporate Debtor until then. Both parties shall be at liberty to raise

all pleas including filing additional documents in support of their averments. No

order as to costs.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Place: New Delhi Date: 14.07.2023

PKM

Company Appeal (AT)(Insolvency) No. 1225 of 2022

6