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TMI Blog2017 (9) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... been availing credit from the Financial Creditor and the latest being in the year 2012 wherein a Working Capital Term Loan of Rs. 100 crores on standalone basis was sanctioned vide sanction letter bearing No. I FB: CR:602.12. Pursuant to the sanction the loan was also disbursed to the Corporate Debtor on 31.12.2012. The amount of term loan along with interest was repayable in 14 instalments as agreed to between the parties. Perusal of the form as prescribed under Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 in Form I as filed by the Financial Creditor discloses in Part IV of the said form that the total amount sanctioned to the Corporate Debtor on several dates is to the extent of Rs. 1506.33 crores and the amount claimed to be in default is to the extent of Rs. 681.04 crores and in addition External Commercial Borrowing of USD 11,971,939.12 as on 31.05.2017 is also in default, all it is averred substantiated by Statement of Accounts filed along with the Petition. In relation to the facilities granted, the Financial Creditor has given in Part V of Form I as referred to above, securities created by the Corporate Debtor and held by the Financial Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows at Paragraph 5 of the said decision rendered on 21st April 2017, namely:- The last objection that has been raised by the counsel for corporate debtor is that winding up petition is sub judice before the Hon'ble High Court of Madras, where the Court permitted Andhra Bank to appoint suitable person to conduct forensic audit of the corporate debtor. The pendency of the winding up petition cannot be a bar under the Code for initiating the corporate insolvency resolution process, because the Hon'ble High Court has not passed any order for winding up of the corporate debtor and no Official Liquidator has been appointed. Therefore, this objection is also rejected. (f) Even though the above decision had been taken in Appeal before the Hon'ble NCLAT in Company Appeal (AT) (Insol.) No. 41 of 2017 by the Corporate Debtor, the Hon'ble Appellate Tribunal did not have the occasion to consider the above question in view of the Corporate Debtor having obtained a stay of the proceedings before the Hon'ble High Court of Madras in relation to the Insolvency Resolution Process pending before the Hon'ble NCLT, Chennai. (g) The view of the Hon'ble NCLT, Ahmeda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi High Court being Company Petition No.477 of 2014, Company Petition Nos. 689,691,692,693,694,695,700 and 722 of 2015 alongwith CP No.238 and 244 of 2016. Even the Official Liquidator has been appointed as a provisional liquidator although the matter is presently before the Appellate Bench with interim directions. (j) The above decision rendered in Nikhil Mehta & Sons v. AMR Infrastructure Ltd. [2017] 84 taxmann.com 163 case had been taken in appeal before the Hon'ble NCLAT in and it is pertinent to note that the Hon'ble NCLAT had framed the following two issues at paragraph 14 while rendering its judgment in appeal in Nikhil Mehta's case, namely: Whether the appellants who reached with agreements/Memorandum of Understanding with respondent for the purchase of three units being a residential flat, shop and office space in the projects developed, promoted and marketed by the respondent come within the meaning of 'Financial Creditor' as defined under the provisions of sub-section (5) of Section 7 of the 'I & B code'; and Whether an application for triggering insolvency process under Section 7 of 'I & B code' is maintainable where winding up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Bombay in an order passed in C.P.No.331 of 2016 in the matter of West Hills Realty Pvt. Ltd. v. Neelkamal Realtors Pvt Ltd. dated 23.12.2016. (n) The Hon'ble High Court of Bombay has also expressed its view in relation to the conflict of jurisdiction between High Courts on the one hand and NCLT on the other in relation to proceedings which were pending before it on 15.12.2016 and the notifications issued in relation to transfer of proceedings as well in relation to the non-obstante clause as provided under Section 238 of IBC of 2016 in following terms: - In my view, it is clear that all winding up proceedings shall not stand transferred to the NCLT. It is clear that if the service of the notice of the Company Petition under Rule 26 of the Companies (Court) Rules, 1959 is not complied before the 15th December 2016 such petitions shall stand transferred to NCLT whereas all other Company Petitions would continue to be heard and adjudicated upon only by the High Court. The Legislative intent is thus clear that two sets of winding up proceedings would be heard by two different forum i.e. one by NCLT and another by the High Court depending upon the date of service of Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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