Excerpts of the order;
# 1. The Petitioner Mr.John Varghese, through his authorised Power of Attorney holder Smt.M.Jamuna Rani, has submitted an application under Section 7 of the I&B Code, 2016 read with Rule -4 of the I&B (AAA) Rules, 2016 seeking to initiat Corporate Insolvency Resolution Process in the matter of M/s Value DesignBuild Private Limited, Corporate Debtor.
# 6. However, the respondent has denied that this is not a financial debt as the loan agreement executed therein is not sufficiently stamped under the Karnataka Stamp Act, 1957 and therefore cannot be looked into for any purpose. He has also submitted that the loan agreement in terms of Section 33(1) of the Karnataka Stamp Act, 1957 the loan agreement ought to be impounded and made over to the Registrar General of Stamps and Investigation for adjudicating appropriate duty and penalty to be paid thereon. Extract of Section 33 is reproduced for convenience as under:
"33. Examination and impounding of instruments (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same".
# 23. Since the transactions being bonafide in nature and amount having been brought in through proper banking channels , and the use of which has not been precluded in law, it is stated that the same does not in any manner attract any of the FEMA Regulations.
# 28. Petitioner reiterates that the contention of the Respondent that the Loan Agreement had been inadequately stamped cannot be agreed to, as the loan agreement is prepared by the Respondent themselves. Petitioner is always ready and willing to pay additional stamp duty if any to cure the said defects as alleged by the Respondent.
# 32. The Petitioner has also cited case law which reads as follows:
Hon'ble Supreme Court in Chilakuri Gangulappa vs Revenue Divisional Officer [Appeal (civil) 1800 of 2001] held as under:
“13. In the present case, an argument is raised that the instrument is not actually an agreement of sale as envisaged in the Schedule to the Stamp Act (subject to amendment made by the State of Andhra Pradesh) but it is only a deed of compromise entered into by two disputing persons. We refrain from expressing any opinion on the said plea as it is open to the parties to raise their contentions regarding the nature of the document before the trial court. In the present case the trial court should have asked the appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the stamp duly together with a penalty amounting to ten time the deficiency. If the appellant agrees to remit the said amount the court has to proceed with the trial after admitting the document in evidence. In the meanwhile, the court has to forward a copy of the document to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty as provided in Section 40(1)(b) of the Act. Only if the appellant is unwilling to remit the amount the court is to forward the original of the document itself to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty. The penalty of ten times indicated therein is the upper limit and the Collector shall taken into account all factors concerned in deciding as to what should be proper amount of penalty to be imposed.
14. Inasmuch as none of the above proceedings had been adopted by any of the authorities including the High Court, we set aside the impugned orders. We direct the Munsif to consider first whether the document is insufficiently stamped and if he finds that question in the affirmative he has to adopt the next step indicated above.
15. This appeal is accordingly allowed."
# 33. All these suggest that the case in hand is a case covered under Financial Creditor whether Loan Agreement and the Real Estate Project by virtue being kept Real Estate Project. This is not in dispute that the payments of few lakhs of Rupees as stated above have been made as it is through the banking channel and the same is not disputed by the Respondent. Discrepancy if any, in the Loan Agreement, can be looked into by the Resolution Professional, and, would issue necessary direction to the Financial Creditor to pay additional fees, and penalty to the appropriate authority under the Stamp Act.
--------------------------
No comments:
Post a Comment