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TMI Blog2017 (11) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered with Insolvency and Bankruptcy Board of India (IBBI/IPA-001/IP-P00240/2017-18/10469) has been proposed as an Interim Resolution Professional. He is hereby appointed as an Interim Resolution Professional. He has filed his certificate of registration 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. - (IB) 123/(PB)/2017 - - - Dated:- 25-9-2017 - MR. M.M. KUMAR AND MS. DEEPA KRISHAN, JJ. For The Petitioner : Bishwajit Dubey, Ms. Surbhi Khatter and Ms. Priyal Modi, Advs. For The Respondent : Alok Agarwal and Ms. Rati Tandon, Advs. JUDGMENT CHIEF JUSTICE (RETD.) M. M. KUMAR, HON'BLE PRESIDENT The Financial Creditor -Bank of Baroda has filed the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity agreement was amended by an amendatory facility agreement dated 18.06.2013. In pursuance of the aforesaid facility agreement the consortium banks along with the financial creditor sanctioned a term loan to the corporate debtor. Under the term loan agreement, the financial creditor sanctioned to the corporate debtor a term loan of ₹ 53,75,00,000 (Rupees Fifty Three Crores and Seventy Five Lakhs). However, the financial creditor has contributed ₹ 53,09,00,000 (Rupees Fifty Three Crores Nine Lakhs). The details of the same have been annexed (Exhibit-3 4). The principal amount in default under the term loan facility as on 30.04.2017 is claimed to be ₹ 44,59,00,000 (Rupees Forty Four Crore Fifty Nine Lakhs). In addition, the default amount towards the overdue interest and penal interest aggregates to ₹ 7,18,50,626 (Rupees Seven Crore Eighteen Lakhs Fifty Thousand Six Hundred and Twenty Six). The corporate debtor defaulted the term loan in 31th July, 2016. Further details of the defaulted amount and the period of default has been disclosed (Exhibit-7). 6. There was also a working capital agreement dated 16.04.2013 (Exhibit-5) executed between the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge in favour of the BoB Consortium, in a form satisfactory to the BoB Consortium, over all immovable assets, present and future of the Corporate Debtor, including at A-2, Ecotech-6, Greater Noida (subject to the first charge with the Greater NOIDA Authority) admeasuring 1,00,000 square meters (the Immovable Property as detailed in Exhibit-8; (b) First charge by way of hypothecation of all the tangible/intangible/movable properties of the Corporate Debtor including, goodwill, (a) revenues/receivables, plant and machinery, furniture, fixtures and equipment and other movable assets, present and further, pertaining to the project; (c) First charge by way of assignment or creation of security interest in favour of the BoB Consortium off more particularly stated in the indication list in Schedule II of the Facility Agreement) (i) .. (ii) . (iii) (iv) (d) charge on the assets created/ to be created out of the Facilities; (e) a first charge on Borrower s all bank accounts including but not limited to escrow account/trust and retention accounts, DSRA, which consists of operating cash flow, treasury income and revenue/receivables of the Borrowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he all current assets of the Corporate Debtor (subject to first charge created/ to be created in favour of working capital lenders). 11. The estimated value of the aforementioned securities (except the corporate and personal guarantees) is approximately ₹ 138,94,16,800 (Rupees One Hundred Thirty Eight Crore Ninety Four Lakh Sixteen Thousand and Eight Hundred). A copy of the valuation report has also been placed on record (Exhibit - 15). 12. The copies of the Original Facility Agreement, Amendatory Facility Agreement, WC Agreement and the sanction letter have been placed on record (Exhibits - 3, 4, 5, 22 and 23) 13. A record of default is also available with the Credit Information Companies like the status classification report of the Corporate Debtor issued by the TransUnion CIBIL dated 28.02.2016 (Exhibit - 16). Likewise, Entries in Bankers Book in accordance with the Bankers Books Evidence Act, 1891 has also been placed on record which relate to the facilities (Exhibit - 17). 14. The financial creditor has then attached a list of other documents to the application to prove the financial debt, the total amount due and the date of default. Those documents are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17. 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 and authorities as are therein contained including the power to substitute and appoint one or more Attorney or Attorneys to exercise for the Bank of Baroda as its attorney. Accordingly, Shri Thakral has executed Power of Attorney in favour of Mrs. Archana Mishra on 03.03.2017 (pp. 17-23). Clause 19 thereof clearly authorized the power of attorney to sign on behalf of the Bank all matters incidental to or arising out of the bankruptcy or insolvency or any composition or arrangement with the creditors. In pursuance thereof, she has signed power of attorney, pleadings and other papers. The application cannot be considered incomplete. Therefore, the objection raised would not survive and is hereby rejected. 18. It has further been argued that the default amount mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so on behalf of other banks who are members of the Consortium. 21. In order to ascertain whether the default has occurred, it will be profitable to read Section 3(12) of the Code which states that default means non-payment of debt when whole or any part of the instalment of the debt has become due payable and the same has not been repaid by the Corporate Debtor . In the present case, it has come on record eminently that the default has occurred many a times. The initial date of default by the corporate debtor in accordance with the term loan facility is 31.07.2016, cash credit facility is 30.06,2016 letter of credit is 23.05.2016, The computation of defaulted amount and the date of default is as under:- Sr. No. Facility Total overdue at [30th April], 2017 Date of Default Days of Default ( Principal + Interest + Overdue Interest) (INR) 1. Term loan facility ₹ 51,77,50,626 (44,59,00,000 + 3,66,10,533 + 3,52,40,093) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority. A conjoint perusal of the aforesaid provision would reveal that form and manner of the application has to be the one prescribed by the authorities. It is required to be accompanied by the prescribed fee. It is further evident that if the application is incomplete as per the requirement of Section 7(2) of the Code then this Tribunal being the Adjudicating Authority may reject it. However, proviso to Section 7(5) of the Code postulates that before rejecting the application on the ground that it is incomplete in terms of Section 7(2) of the Code the Tribunal is obliged to give notice to the applicant to rectify the defect. The defect in the application needs to be removed within seven days from the date of receipt of notice. No such situation has arisen and we find that application is complete in all respect. 24. For the reasons, aforementioned this petition is admitted. Shri Rajesh Samson who is duly registered with Insolvency and Bankruptcy Board of India (IBBI/IPA-001/IP-P00240/2017-18/10469) has been proposed as an Interim Resolution Professional. He is hereby appointed as an Interim Resolution Professional. He has filed his certificate of registratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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