NCLT Mumbai (14.02.2019), in L & T Infrastructure Finance Company Limited V/s Maharashtra Vidyut Nigam Private Limited [CP (I&B) 593/NCLT/MB/2018] held that; The proceedings before this Adjudicating Authority are summary in nature. It is pertinent to mention that stamp duty payable and paid on letter of guarantee is Rs. 100 and it has been purchased by the Corporate Debtor. Therefore, the Corporate Debtor has no right to raise the objection of insufficient stamp duty.
Excerpts of the order;
# 1. It is a Company Petition filed u/s 7 of Insolvency & Bankruptcy Code, 2016 (IBC) by the financial creditor namely L & T Infrastructure Finance Company Limited against the Corporate Debtor namely Maharashtra Vidyut Nigam Pvt. Ltd. to initiate corporate insolvency resolution process against the corporate debtor. The amount claimed to be in default is Rs. 94,95,68,366/- as on 21.3.2018. The date of default has been stated as 31.1.2015, and the date of declaration of Corporate Debtor’s account as a nonperforming
asset has been stated as 31.3.2016.
# 10. Reference has been made to the specific clause in the Deed of Guarantee dated 5.1.2015 to show that the Corporate Debtor unconditionally and irrevocably guaranteed the debt of GGRPL.
# 13. The Corporate Debtor did not file a reply even though several opportunities were given for the same. During the hearing the Corporate Debtor raised, inter-alia, following defences:
e) It is submitted that the Deed of Guarantee dated 5.1.2015 executed in Delhi is not duly stamped in accordance with the provisions of the Maharashtra Stamp Act, 1958, therefore, the same cannot be acted upon or looked into by this Tribunal. Reference has been made to Sections 18, 33 & 34 of the Stamp Act and it is stated that as per Section 18, if an instrument is executed outside Maharashtra, then same has to be stamped within 3 months from the date first it is received in the state. Reference has also been made to the judgment of SMS Tea Pvt. Ltd. v. Chandmari Tea & Co. Pvt. Ltd. [(2011) 14 SCC 66]. It is further submitted that since the Deed of Guarantee is insufficiently stamped, the Tribunal should not act upon it.
f) It is submitted since the Financial Creditor brought the Deed of Guarantee into the state of Maharashtra from Delhi, the burden of complying with the provisions of Section 18 of the Stamp Act falls on the Financial Creditor. Reference has also been made to Section 30A of the Stamp Act to state the liability to pay stamp duty falls on the Financial Creditor.
# 14. The Financial Creditor rebutted the defences raised by arguing the following:
b. The Deed of Guarantee executed by the Corporate Debtor is not insufficiently stamped. It is stated that the Stamp for this document was purchased by the Corporate Debtor as apparent from Pg. 253 of the Petition. The Corporate Debtor has acted upon the document. To substantiate this, reliance has been placed on Tata Capital Financial Services v Unity Infraprojects (MANU/ MH/1362/2015) to state that since the guarantee has been acted upon and the debt has been admitted by the corporate debtor, it cannot raise the objection that the document is insufficiently stamped.
# 19. The proceedings before this Adjudicating Authority are summary in nature. It is pertinent to mention that stamp duty payable and paid on letter of guarantee is Rs. 100 and it has been purchased by the Corporate Debtor. Therefore, the Corporate Debtor has no right to raise the objection of insufficient stamp duty.
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