Samskar Financial Services Private ... vs Roofers Infrastructure India Private ...

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT)(INS) NO.490/2023 (Arising out of judgement and order dated 15.11.2022 passed by National Company Law Tribunal, Kolkata Bench, Kolkata in CP(IB) NO.2137/KB/2019)

In the matter of: Samskar Financial Services Pvt Ltd 12A, N.S. Road, 5th Floor, Room No.7, Kolkata 700001 Appellant Vs Roofers Infrastructure India Pvt Ltd 103A, CIT Road, 2nd Floor, Kolkata 700014 Respondent

For Appellant:Mr Anjuman Tripathy, Mr. Ardhendu Pratap Singh, Advocates. For Respondent:Mr Asher Revi, Mr Riju Ghosh, Advocates. JUDGEMENT

JUSTICE YOGESH KHANNA, MEMBER (JUDICIAL) This appeal is filed against an impugned order dated 15.11.2022 passed

by the Ld. National Company Law Tribunal, Kolkata Bench, Kolkata in CP(IB)

No.2137/KB/2019 whereby the Ld. NCLT had dismissed the petition filed

under Section 7 of the IB Code.

2. The appellant had sanctioned two terms loans of Rs.30,00,000/-

(Rupees Thirty lakh only) each to the Respondent for a period of six months,

repayable with interest @ 24% per annum compounded and payable monthly

by two different loan agreements, both dated 11.10.2018. 2

3. In terms of these agreements the Respondent had also issued two

Promissory Notes, both dated 11.10.2018 for Rs.30 lakh each; in favour of the

appellant. The loan was also secured by two mortgage deeds, both dated

11.10.2018.

4. The appellant disbursed a sum of Rs.52,20,000/- through RTGS in

favour of the Respondent in its account with Corporation Bank, Kharagpur

Branch. A further sum of Rs.3,00,000/- was paid to Shri Chiranjeeb Biswas

and Shri Subhasish Basu (i.e. Rs.1,50,000/- each) as per the directions of the

Respondent. An advance interest for three months in the sum of

Rs.3,60,000/- and Rs.1,20,000/- on account of processing charges were also

adjusted out of the sanctioned loan amount. However, the Respondent did

not pay any interest after initial adjustments of its interest of three months.

The default in payment of monthly interest(s) commenced w.e.f. 01.02.2019.

Now, in terms of Clause 7 of the loan agreements; the loan was fully repayable

after a period of six months which period also expired on 26.04.2019. The

appellant recalled its loan by issuing notice dated 12.11.2019 and sought

repayment of the entire loan amount alongwith interest upto 30.11.2019 but

the Respondent did not make any payment.

5. It is argued by the appellant by the impugned order, the Ld. NCLT

though admitted there being a relation between the parties as of a Financial

Creditor and a Corporate Debtor but in view of the Clauses 7 and 9 of the

Agreements dated 1.10.2018, the default, if any, was to occur only after period

of 30 months and thus the debt was never due and hence no default had

occurred and thus the petition was premature and accordingly dismissed it. 3

6. The learned counsel for respondent, however, argued the loans were

sanctioned for 30 months and the default could not occur prior to 30 months

and could occur only upon happening of any contingencies under Clause 9.

It was argued Clause 7 cannot be read in isolation. It was argued loan and

unpaid interest was payable only after 30 months and even then 60 days were

given to borrower to repay, hence there was no default. Heard.

7. For appreciating the arguments raised by both the learned counsels, it

would be appropriate to first analyse the terms and conditions of the loan

agreement(s). Both loan agreement(s) have identical clauses viz.-

Clause 1: The financial assistance was for a term of 30 months.

Clause 2: The said loan/credit facility has been advanced against a fixed rate of interest @ 24% per annum compounded monthly and payable monthly in advance on the 1st day of every English calendar month from the date of first payment. Interest shall be calculated for the no. of days in any English calendar month based on the rate of interest, i.e., 24% being for 6 months.

Clause 6: The Borrowers shall handover undated cheque beraing nos.______to________drawn on accounts No._________with______branch of___________Bank duly signed by the Borrowers, for the purpose of depositing the same towards payment of interest and principal as provided hereinabove, to the Lenders, who shall be entitled to deposit the same with their bank on due dates as provided in these presents.

Clause 7: The loan shall be fully payable after a period of 6(six) months.

Clause 8: The Borrowers shall be entitled to repay the loan prior to completion of 6(six) months and in that case, the Borrowers shall inform the same in writing to the Lenders.

Clause 9:In case the Borrowers are unable to repay the loan alongwith unpaid interest, if any, in its entirety on completion of a period of 30 months, the Lenders 4

shall inform the Borrowers in writing that they intend to sell the mortgaged premises and that the maximum sale value at which sale could take effect. In case, the Lenders do not get repaid of the loan and interest in its entirety within a period of 60 days thereafter, Lenders would be at liberty to sell the Premises and get the same registered by the Attorney of the Borrowers and after adjusting their dues, pay the remaining sale proceeds to the Borrowers.

8. In addition to these two agreements, two promissory notes were also

executed for a sum of Rs.30 lakhs. Both promissory notes are also identical

and contained a clause viz. the said loan/credit facility has been advanced

against fixed rate of interest @ 24% per annum, compounded monthly

payable every English calendar month in advance from the date of first

payment. Though both the promissory notes and the agreements referred to

above refer to undated cheques to be given but no details of such cheques are

mentioned in the promissory notes.

9. In view of the totality of facts. we disagree with the finding of the Ld.

NCLT. Clause 2 of the agreement(s) clearly stipulate the interest was payable

monthly in advance on the first day of each calendar month from the day of

first payment. Further clause 7 and 8 of the agreement above makes the loan

fully repayable after a period of 6 six months and Clause 9 says in case the

Borrowers are unable to repay the loan alongwith unpaid interest on

completion of period of 30 months then they shall have the right to sell the

property. However, in any case the interest was payable monthly as is stated

in both the agreements and also in both the promissory notes. Admittedly

there has been a default in payment of the monthly interest after three

months. Now the simple question that arose is if the respondent failed to

make payment of monthly interest will then the appellant be bound to wait 5

till completion of 30 months to seek payment of his principal. The answer

would be emphatic NO. The simple interpretation of documents above reveals

as soon as there is default in payment of interest by the Respondent, the

default shall occur. Clause 9 only refers to the fact if unpaid interest

alongwith principal is still not paid within 30 months then after 60 days the

lenders/appellant shall get right to sell the mortgaged property.

10. A bare perusal of the statement of account/ledger filed by the appellant

Annexure A-12, reveals the interest was never paid after March, 2019 and

hence default notice dated 12.11.2019 was sent to the Respondent after a

cheque of Rs.60 lakhs drawn on Corporation Bank, Kharagpur was

dishonoured for reasons payment stopped by drawer. There is no ground to

believe the dishonoured cheque was given in blank as security. Neither the

agreement(s) nor the promissory note(s) makes a reference to the dishonoured

cheques being handed over at the time of entering into the agreements.

Nevertheless, admittedly the interest was never paid since March, 2019, thus

even if the loan was sanctioned for a term of 30 months yet on default the

lender had every right to cancel the agreement(s) and to demand the entire

principal amount with interest. Hence there was no reason to dismiss the

petition under Section 7 IBC as the agreement(s) notes the amounts were lent

and were for time value of money. Admittedly there was failure on the part

of Respondent to repay the loan (or interest after the notice; hence there

existed a cause for the appellant to file a petition under Section 7 of IBC. On

reasons aforesaid the appeal is admitted and the impugned order is hereby 6

set aside. Petition under Section 7 of IBC thus stands admitted. Matter be

now listed before the Ld. NCLT on 24-02-2025 for further proceedings.

11. Pending applications, if any, are all disposed of.

(Justice Yogesh Khanna) Member (Judicial)

(Mr. Arun Baroka) Member (Technical) Dated:11-02-2025.

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