Tropical Ventures Company Ltd. Vs. Mr. Pankaj Kumar Tibrewal (RP) and Anr. - It is well-settled position of law that the creditor, in terms of Rule 12 of the IBBI (CIRP) Regulations, 2016, shall submit his claim with proof and it is the obligation and duty of the RP to verify the same and retrieve the record of the corporate debtor wherever the same is available and shall verify and collate the claim with reference to the material/documents available on record or submitted. We find that in absence, original deeds, the claim admitted based on assignment deed is not proper.

  NCLT Kolkata (2025.01.08) in Tropical Ventures Company Ltd. Vs. Mr. Pankaj Kumar Tibrewal (RP) and Anr. [(2025) ibclaw.in 58 NCLT, I.A. (IB) No. 1301/KB/2023 in Company Petition (IB) No. 1684/KB/2018] held that;.

• It is well-settled position of law that the creditor, in terms of Rule 12 of the IBBI (CIRP) Regulations, 2016, shall submit his claim with proof and it is the obligation and duty of the RP to verify the same and retrieve the record of the corporate debtor wherever the same is available and shall verify and collate the claim with reference to the material/documents available on record or submitted. We find that in absence, original deeds, the claim admitted based on assignment deed is not proper.

Excerpts of the Order;

# 1. The court congregated through a hybrid mode.

# 2. We have heard the Ld. Sr. Counsel Mr. Kevic Setalvad,appearing on behalf of the applicant Tropical Ventures and Ld. Sr. Counsel Mr. Joy Saha, appearing on behalf of the Respondent Kamala Mills and Ld. Counsel Mr. Shaunak Mitra, appearing on behalf of the RP in extenso.

# 3. M/s. Tropical Ventures Company Limited, hereinafter referred to as “Applicant”/ “Tropical Ventures” by way of this application filed under Section 60(5) of the Insolvency and Bankruptcy Code, 2016, for brevity “I&B Code” against the Resolution Professional of INCAB Industries, Mr. Pankaj Kumar Tibrewal, hereinafter referred to as “RP”/ “Respondent No. 1” and Kamala Mills Limited, hereinafter referred to as “Respondent No. 2”/ “Kamala Mills” has sought the following reliefs:

a) To pass necessary order quashing and setting aside the decision of the Respondent No. 1 whereby the Respondent No. 1 has incorrectly admitted the claim of Respondent No. 2.

b) To declare the Assignment Deed dated 21st June 2006 between Asset Reconstruction Company (India) Limited and Kamala Mills  Limited i.e., Respondent No. 2 as null and void and non-est in the eye of law.

c) To declare the Deed of Assignment dated 31st December 2004 between ICICI Bank Limited and Asset Reconstruction Company (India) Limited as null and void and non-est in the eye of law. 

d) To Pass necessary order rejecting the claim of the Respondent No. 2 against the Corporate Debtor.

e) To Pass necessary order directing the Respondent No. 1 to revisit and/or re-calculate the claim of Respondent No. 2.

f) To pass necessary order of injunction restraining the Respondent No. 2 for relying upon or taking any benefit from the Assignment Deed dated 21st June 2006.

g) To pass necessary order and directions to the Respondent No. 2 to produce Deed of Assignment dated 31st December 2004 between ICICI Bank Limited and Asset Reconstruction Company (India) Limited to ascertain what was assigned to ARCIL and

thereafter by ARCIL to Respondent No. 2.

h) To pass necessary order of injunction restraining the Respondent No. 2 for relying upon or taking any benefit from the Assignment Deed dated 21st June 2006 between Asset Reconstruction Company (India) Limited and Kamala Mills Limited i.e., Respondent No. 2.

i) To pass necessary order of injunction restraining the Respondent No. 2 for relying upon or taking any benefit from the Deed of Assignment dated 31st December 2004 between ICICI Bank Limited and Asset Reconstruction Company (India) Limited.

j) To pass necessary order and directions to the Respondent No. 1 to produce record and proceedings submitted by Respondent No. 2 to Respondent No. 1 along with FORM “C”.

k) Pending the hearing and final disposal of this Application the application filed by the Respondent No. 1 being I A No 646 of 2022 be stayed.

l) Pass any other further orders as this Adjudicating Authority may deem fit and proper in terms of section 60(5) of the Insolvency and Bankruptcy Code, 2016.

Facts in a nutshell:

# 4. The applicant Tropical Ventures has claimed as a secured debt holder of the corporate debtor Incab Industries by the virtue of Deed of Assignment dated March 08, 2007. The RP by way of an email dated 17.11.2021 has classified the applicant as a “related party” of the corporate debtor, and admitted part of his claim as secured debt and another part as unsecured debt.

# 5. Kamala Mills (Respondent No. 2) had filed its claim before the RP relying on a Deed of Assignment dated 21.06.2006, executed between Asset Reconstruction Company (India) Limited, in short “ARCIL” and Kamala Mills Limited. By way of the said Deed of Assignment, Kamala Mills claimed that the entire debt of ICICI Bank was assigned to Kamala Mills.

# 6. The present application has been inter alia preferred by the applicant Tropical Ventures to declare the Assignment Deed dated 21.06.2006 executed between ARCIL and Kamala Mills and the Assignment Deed dated 31.12.2004 executed between ICICI and ARCIL as null and void and non-est in the eyes of laws. 

Applicant Tropical Venture’s submission:

# 7. Mr. Kevic Setalvad, ld. Sr. Counsel in support of the present application would submit that the RP has admitted the claim of Kamala Mills based on the Assignment Deed dated 21.06.2006 executed between ARCIL and Kamala Mills. In the said Deed, it is inter alia stated in recital A annexed at page 20 to the application that the ICICI bank vide the Assignment Deed dated 31.12.2004 has assigned the financial assets mentioned therein favour of ARCIL. It is alleged that the RP has admitted the claim of Kamala Mills by not verifying the principal documents of the said deeds.

# 8. Mr. Setalvad, ld. Sr. Counsel would further submit that the Schedule I to the Assignment Deed dated 21.06.2006, mentions seven documents of loan or credit facilities which were assigned by the ARCIL in favour of the Kamala Mills, however, the details of these documents have neither been provided nor the documents have been annexed to.

# 9. Mr. Setalvad, ld. Sr. Counsel would assert that part of the claim assigned by ICICI to ARCIL and thereafter to Kamala Mills have already been settled between ICICI with Leader Universal Holding Berhad, in short “Leader”. As per the Assignment Deed dated 21.06.2006, the corporate debtor Incab availed a corporate loan of Rs. 100 million from the ICICI and Leader Universal being the predecessor of the applicant had stood as a guarantor to the Incab at the time of the execution of the said loan. The corporate debtor Incab was incapable of repaying the said loan, and thus, an amount of Rs. 83 million was paid by the Leader Universal as a guarantor of the corporate debtor in respect of the loan agreement dated 10.08.1998. A letter was issued by the ICICI to Leader confirming the settlement annexed at page 142 to the application.

# 10. Mr. Setalvad, ld. Sr. Counsel would further assert that as per Schedule I to the Assignment Deed dated 21.06.2006, the corporate debtor had availed some foreign currency loan, sans obtaining permission under Foreign Exchange Management Act, 1999. As per Section 3 of FEMA no personal shall receive any payment on behalf of a person resident outside India except as provide under the Act or with the general or special permission of the Reserve Bank of India. There is no averment to demonstrate that the aforesaid compliances under FEMA or permission of the RBI were obtained. Further as per Section 13 of the FEMA, any person in contravention of the FEMA is liable to pay a penalty up to thrice the sum involved in such contravention or up to Rs. 2 Lakh where the amount is not quantifiable. Ld. Sr. Counsel would claim that the non-procurement of necessary permission under Section 3 of the FEMA would make the parties therein liable for penalty under Section 13 of the FEMA. Thus, he would submit that the documents at Sr. No. 1 and Sr. No. 4 of Schedule I to the Assignment deed dated 21.06.2006 would be void and non-est in the eyes of law and admission of claim of Kamala Mills deserves to be dismissed.

# 11. In support the case, the Ld. Sr. Counsel would refer to the judgment rendered by the Hon’ble Apex Court in Mannalal Khetan v. Kedar Nath Khetan, reported in (1977) 2 SCC 424 at page 430 (para 19) that where a contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect. A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition. The penalty may be imposed with intent merely to deter persons from entering into the contract or for the purposes of revenue or that the contract shall not be entered into so as to be valid at law. Per contra, RP’s plea in reply:

# 12. Mr. Shaunak Mitra, ld. Counsel on behalf of the Resolution Professional (RP) would submit that Kamala Mills acquired the debt through the Deed of assignment dated 21.06.2006 executed by ARCIL. The details of facilities assigned by ARCIL in favour of Kamala Mills are narrated in detail in Schedule 1 of the deed of assignment, annexed at pages 27-28 to the application, wherein, total seven different facilities stood assigned to the Kamala Mills. Pages 27-28 of the application are reproduced hereunder:

# 13. Further, it is submitted that pursuant to Deed of Guarantee dated 26.02.1999, Leader Universal executed a corporate guarantee in favour of ICICI Bank for an amount of Rs. 10 Crore. The learned counsel for the RP would take us to clause 2 of the Deed of Guarantee dated 26.02.1999, at page 144 to the application which reiterates that:

• The Lender (ICICI) has agreed, in principle, to lend and advance to the Borrower (Incab) sums to the maximum extent amounting to Rs. 100 million (hereinafter referred to as “the Loan”) on the terms and conditions contained in the Loan Agreement dated 10th day of August 1998 entered into between the Borrower and the Lender (hereinafter referred to as “the Loan Agreement”)

# 14. It is contended that upon failure of the corporate debtor to make the payment of the loan amount, the corporate guarantee was invoked by ICICI bank. Pursuant to the invocation, a settlement was arrived between ICICI and Leader for the said corporate guarantee concerning to the loan of Rs. 10 Crore availed from ICICI by Incab. In respect of the settlement, ICICI accepted a payment of Rs. 8.3 Crore and confirmed the same through a letter dated 20.07.2001, annexed at page 142 to the application. Ld. Counsel for the RP took

us to the clause (ii) of Letter dated 20.07.2001, which provides that “Save and except the Corporate Guarantee of Leader, the rest of the security under the Loan Agreement shall remain in full force and effect till such time the company repays the balance amount of the principal together with interest and other charges.” Relying on this clause, Ld. Counsel for RP would submit that on payment of the sum of Rs. 8.3 Crore merely absolved the corporate guarantor from its liability. However, the same shall not relinquish the duty of the corporate debtor to make payments of the balance outstanding amount, the principal and impending interests, to ICICI Bank. 

# 15. Ld. Counsel would submit that the facilities other than the said Rs. 8.3 Crore (which went to Leader and ultimately to Tropical) are summarized below:

• a) Foreign currency loan of DM 994,550 by loan agreement dated 19.12.1985.

• b) Rs. 1 Crore rupee loan by loan agreement dated 09.09.1988. 

• c) Deferred payment guarantee for Rs. 176 Lakh by guarantee agreement dated 09.09.1988.

• d) Loan relating to securitization of DOT receivables by agreement dated 09.07.1999.

• e) Loan relating to securitization of DOT receivables by agreement dated 10.02.1999.

• f) Working capital facility of Rs. 20 Crore by Credit facility Agreement dated 23.09.1998.

# 16. It is submitted that ICICI through a letter dated 31.12.2004 had confirmed assignment of the aforesaid facilities to ARCIL and thereafter, ARCIL executed deed of assignment of the self-same facilities to Kamala Mills.

Kamala Mills’ response:

# 17. Ld. Sr. Counsel Mr. Joy Saha appearing on behalf of Kamala Mills (Respondent No. 2) would argue that the Tropical has filed the present application as a response to Kamala Mills’ application being I.A. (IB) No. 518/KB/2022. In I.A. (IB) No. 518/KB/2022, the Kamala Mills has challenged the RP’s decision of admitting the claim of Tropical and prayed for rejection of Tropical’s claim admitted by RP and set aside the deed of assignment dated March 08, 2007. The application is nothing but an afterthought and is a counter blast to Kamala Mills’ application and thus, the present application is liable to be dismissed.

# 18. Mr. Joy Saha, Ld. Sr. Counsel would further argue that the allegation with regard to FEMA compliances has not been mentioned in the pleadings or in the application preferred by Tropical herein. It is argued that the issued not raised in the pleadings cannot be introduced during the course of arguments. This ruling emphasizes the necessary for parties to clearly articulate their contentions and adhere to their pleadings. Reliance is placed on Arikala Narasa v. Venkata Ram Reddy Reddygari & Anr. reported in (2014) 5 SCC at para 15.

Analysis and Findings:

# 19. It is evident that through the Deed of Assignment dated 21.06.2006, annexed at page 17-45 to the application herein, ARCIL assigned the financial assets and facilities to the Kamala Mills. ARCIL obtained the said financial assets and facilities from the original lender ICICI Bank through the Assignment Agreement dated 31.12.2004, which is mentioned in the Deed of Assignment dated 21.06.2006 at para (A), page 20 to the application. We find that through the Deed of Assignment dated 21.06.2006, several facilities were assigned to Kamala Mills by ARCIL, as detailed at para 12 of this Order. However, we note that there are not the original deeds of these facilities attached to the Deed of Assignment dated 21.06.2006. We are unable to conclude in absence of Assignment Agreement dated 31.12.2004, as well as other agreements mentioned in the List of documents annexed at page 27 to 27 to the application, that what was actually assigned to ARCIL by the ICICI and subsequently to Kamala Mills. We would infer that to substantiate one’s claim, original deeds or principal documents are required to be produced, and mere reciting a list of documents or

deeds in the Assignment Deed is not enough.

# 20. It is well-settled position of law that the creditor, in terms of Rule 12 of the IBBI (CIRP) Regulations, 2016, shall submit his claim with proof and it is the obligation and duty of the RP to verify the same and retrieve the record of the corporate debtor wherever the same is available and shall verify and collate the claim with reference to the material/documents available on record or submitted. We find that in absence, original deeds, the claim admitted based on assignment deed is not proper.

# 21. In view of above, we are of the view that, we find it fit to direct the RP to re-verify the claim of the Kamala Mills by considering the principal documents. Accordingly, we dispose of the application and list the matter on 10.02.2025 for filing progress report with liberty to mention.

# 22. In view of above, the application is disposed of. 23. Certified copy of this order, if applied for with the Registry be supplied to the parties in compliance with all requisite formalities.

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