2019 (3) TMI 1235 - Tri - Insolvency and Bankruptcy

Corporate Insolvency Resolution Process - consortium finance - Application by lead banker - Applicant bank filed an OA for recovery which is pending before the Debt Recovery Tribunal - HELD THAT - The Letter of Indian Banks Association dated 19.04.2017, wherein the IBA has clearly stated that the Committee has concluded that the Resolution plan does not meet the stipulations under the S4A Scheme. The respondent is well aware of the same and vide letter dated 21.04.2017 acknowledged the same. Also the rejection of the resolution plan under S4A Scheme was also recorded in the Minutes of Consortium/JLF meeting held on 09.05.2017, wherein it was also declared that the accounts of the Corporate Debtor with all the lenders have been declared as NPA in their respective books/ledgers. Further the members of the consortium have decided to appoint IRP and the same has been duly recorded in the JLF meeting held on 12.06.2018. Since most of the exposure of the Respondent company was by way of consortium finance wherein the applicant was lead bank and there is no bar for the applicant to approach this Hon ble Tribunal for initiating resolution process without seeking consent of other lenders. As per the circular dated 26.02.2018, all such restructuring schemes have been cancelled/ withdrawn by RBI where implementation had not taken place, including S4A Scheme. All requirements of Section 7 of the Code for initiation of Corporate Insolvency Resolution Process by a Financial Creditor stand fulfilled. - this petition is admitted.

Summary

Issues Involved:
1. Application under Section 7 of the Insolvency & Bankruptcy Code, 2016.
2. Financial debt and default by the respondent.
3. Defense and objections raised by the respondent.
4. Admission of the petition and appointment of Interim Resolution Professional (IRP).

Issue-Wise Detailed Analysis:

1. Application under Section 7 of the Insolvency & Bankruptcy Code, 2016:
The application was filed by IDBI Bank Limited under Section 7 of the Insolvency & Bankruptcy Code, 2016, read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The petitioner sought to initiate the Corporate Insolvency Resolution Process (CIRP) against the respondent, M/s Santosh Overseas Limited, due to the latter's failure to repay the outstanding debts.

2. Financial Debt and Default by the Respondent:
The respondent company had availed various Term Loans and Working Capital Facilities from the petitioner bank. The details of the loans were as follows:
- Term Loan of ?14 Crores, Cash Credit facility of ?18 Crores, and LER facility of ?5 Crores sanctioned on 24.07.2007.
- Term Loans of ?5 Crores each sanctioned on 06.12.2013 and 17.12.2014.
The respondent failed to repay the outstanding balance of ?1,61,10,65,388.05 as of 01.07.2018, leading to the account being declared Non-Performing Assets (NPA) on 20.01.2017. The petitioner served a Recall Notice on 15.09.2017 and a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on 30.10.2017.

3. Defense and Objections Raised by the Respondent:
The respondent argued that the petitioner had not approached the tribunal with clean hands and suppressed material facts, such as the S4A Scheme sanctioned as per RBI guidelines. The respondent claimed that the account was being operated under the TRA Account and the restructuring proposal was ongoing. The respondent also contended that the petitioner’s unilateral action was against the spirit of consortium finance, as the petitioner was the lead bank with a 25.5% share in the total lending of ?384 Crores. The respondent further argued that the account classification as NPA was inconsistent and that the initiation of CIRP would adversely affect the business operations and ongoing manufacturing activities.

4. Admission of the Petition and Appointment of Interim Resolution Professional (IRP):
The tribunal found that the application met all the requirements under Section 7 of the Code, including the occurrence of default, completeness of the application, and no disciplinary proceedings against the proposed IRP. Consequently, the petition was admitted, and Sh. Rohit Sehgal was appointed as the Interim Resolution Professional. The tribunal directed the IRP to make a public announcement regarding the admission of the application and declared a moratorium as per Section 14 of the Code. The moratorium imposed prohibitions on the institution or continuation of suits, transferring or disposing of assets, and recovery actions against the corporate debtor. The tribunal also emphasized the IRP's duty to perform functions with integrity and the obligation of the corporate debtor's personnel to cooperate with the IRP.

Conclusion:
The tribunal admitted the application under Section 7 of the Insolvency & Bankruptcy Code, 2016, and initiated the Corporate Insolvency Resolution Process against the respondent. The IRP was appointed, and a moratorium was declared to ensure the orderly conduct of the resolution process. The tribunal's order highlighted the need for cooperation from the corporate debtor's management and adherence to the Code's provisions by the IRP.