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TMI Blog2017 (10) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration with Insolvency and Bankruptcy Board of India. He has also filed his written communication dated 04.08.2017 in connection with the application to initiate Corporate Insolvency Resolution Process. The disclosure has been made in the letter dated 04.08.2017. In pursuance of Section 13(2) of the Code we direct that public announcement shall be made by the Interim Resolution Professional within the statutory period with regard to admission of this application under Section 7 of the Code. We also declare moratorium in terms of Section 14 of the Code - C.P. NO. (I.B.)-121(PB)/2017 - - - Dated:- 4-9-2017 - MR. M.M. KUMAR AND MS. DEEPA KRISHAN, JJ. For The Petitioner : Shri Bishwajit Dubey, Ms. Surbhi Khatter Ms. Priyal Modi, Advocates For The Respondents: Shri Alok Agarwal Ms. Rati Tandon, Advocates JUDGMENT CHIEF JUSTICE (RETD.) M. M. KUMAR, HON'BLE PRESIDENT The 'Financial Creditor'-Bank of Baroda has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') with a prayer to trigger the Corporate Insolvency Resolution Process in the matter of Amrapali Silicon Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he corporate debtor a term loan of ₹ 100,00,00,000 (Rupees One Hundred Crores). However, the financial creditor has contributed ₹ 96,88,00,000 (Rupees Ninety Six Crores Eighty Eight Lakhs). The details of the same have been annexed (Exhibit-4). The principal amount in default under the term loan facility as on 30.04.2017 is claimed to be ₹ 59,38,00,000 (Rupees Fifty Nine Crore Thirty Eight Lakhs). In addition, the default amount towards the overdue interest and penal interest aggregates to ₹ 11,77,43,681 (Rupees Eleven Crore Seventy Seven Lakhs Forty Three Thousand Six Hundred Eighty One). The corporate debtor defaulted the term loan in March, 2016. Further details of the defaulted amount and the period of default have been disclosed (Exhibit-5). The total amount of default under the term loan facility has been further accelerated by the consortium of Bank of Baroda through the notice of acceleration-cum-demand dated 06.03.2017.According to the notice the repayment of the defaulted amount was required to be made within seven days from the date of the acceleration notice. 6. The 'financial creditor' has placed on record an overwhelming evidence to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntors have furnished the Corporate guarantees:- (a) Ultra Home Construction Private Limited; (b) Rinku Clothing Creations Private Limited; (c) Jotindra Steels and Tubes Limited; and (d) Vidhya Shree Buildcon Private Limited All of them have guaranteed the obligation of the corporate debtor under the loan agreement executed by the Corporate Guarantors in favour of the consortium banks. Copies of the Corporate Guarantee Agreements have been placed on record (Exhibit-10). 8. The Financial Creditor also placed on record the Personal Guarantees of the Corporate Debtor namely Mr. Anil Kumar Sharma, Mr. Pramod Kumar and Mr. Shivpriya. All of them have guaranteed the obligation of the Corporate Debtor under the loan agreement dated 25.02.2012. Copies of the Personal Guarantees have been placed on record (Exhibit-11). 9. The estimated value of the aforementioned securities (except the corporate and personal guarantees) is approximately ₹ 13,23,49,84,000 (Rupees One Thousand Three Hundred and Twenty Three Crores Forty Nine Lakhs and Eighty Four Thousand). A copy of the valuation report has also been placed on record (Exhibit - 12). 10. The copies of the loan agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... da, Oriental Bank of Commerce and Bank of Maharashtra are described as consortium or the lenders. It is also conceded that the applicant was designated as lead bank of the Consortium. The applicant cannot individually enforce any right or obligation of the term loan agreement. The application even otherwise is incomplete and the same is liable to be rejected. A reference has been made to the provisions of Section 7 (5) (a) of the Code in as much as the question has been raised with regard to the authority of Ms. Archana Mishra from Bank of Baroda who is authorized by Power of attorney dated 03.02.2017to file the present application. According to the learned Counsel Ms. Archana Mishra would have the same power and authority which were conferred upon Mr. Ravi Kant Thakral vide a power of attorney dated 16.12.2015 and the Board resolution of the company. The power of attorney has not been placed on record. We have duly considered the objection. The power of attorney has been later placed before us. A perusal of power of attorney dated 16.12.2015 executed in favour of Shri Ravi Kant Thakral would show that both these objections would not survive. The Bank has conferred upon him powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, no other financial creditor has come to the forefront to oppose the application. 16. The respondent has also made an attempt to highlight that the group housing project namely Silicon City Project is being driven through an SPV being the current respondent. It is further stated the land in question is not owned by the 'corporate debtor'. As a matter of fact, the land is owned by Noida Authority. The 'corporate debtor' has issued a lease, which is governed by various covenants and the covenants include the provisions of cancellation of the lease and to take over the entire project, including the land in case of default in payment. It is claimed that the aforesaid stipulation has found further strength from the RERA Act. The project is likely to be completed in year 2021. To start with there would be construction of 6000 flats by December 2017. The 'corporate debtor' is to handover possession of 900 flats to the respective flat buyers in 2018 and another 900 flats would be handed over in the year 2019 and remaining 2200 flats shall be constructed and delivered by 2021. The delay has been caused on account of the order dated 07.04.2015 passed by the Nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RTL Facility 59,38,00,000.00+4,51,75,849.00+6,63,86,493.08+61,81,339.88 31.03.2016 398 days till date Total 71,15,43,682.00 20. The default has again occurred when a demand notice dated 06.03.2017 was issued (acceleration notice) and the repayment of the defaulted amount was required to be made within seven days from the date of acceleration notice. The principal defaulted amount in most documents is the same. However, in one of the documents it may vary as the calculation has been made for different dates. Therefore, it would not be a material factor warranting the dismissal of the application. Any objection to the amount of default shall remain available to the 'corporate debtor' before the 'Committee of Creditors'. 21. In order to arrive at a correct conclusion, it would be further necessary to examine the provisions of Section 7(2) and 7(5) of the Code which read as under: Initiation of corporate insolvency resolution process by fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. In pursuance of Section 13(2) of the Code we direct that public announcement shall be made by the Interim Resolution Professional within the statutory period with regard to admission of this application under Section 7 of the Code. We also declare moratorium in terms of Section 14 of the Code. Some necessary consequences of imposing the moratorium flows from the, provisions of Section 14 (1) (a), (b), (c) (d). Thus, the following prohibitions are imposed: (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such propert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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