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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 ..... a corresponding new bank on commencement of the Banking Companies Act. The permanent account number of the financial creditor is AAACB1534F and its branch office is at Corporate Financial Services Branch, Ist Floor, Bank of Baroda Building, 16, Parliament Street, New Delhi-110001. 2. Ms. Archana Mishra has been authorized by the letter dated 03.02.2017 (Exhibit- 1). 3. The Corporate Debtor-Amrapali Infrastructure Private Limited was incorporated on 28.12.2007. Its authorised share capital is Rs. 3,00,00,000/- (Rupees Three Crores) and the paid-up share capital is Rs. 2,93,52,640/- (Rupees Two Crores Ninety Three Lakhs Fifty Two Thousand Six Hundred and Forty) as per the master data available on the website of Ministry of Corporate Affairs. It has its registered office also at Delhi. 4. The financial creditor has proposed the name of Mr. Rajesh Samson as an Insolvency Professional. A certificate of registration dated 30.06.2017 issued by the Insolvency and Bankruptcy Board of India has been placed on record (Annexure-B) attached with the application. He has registration No. IBBI/IPA-001/IP-P00240/2017-18/10469. He has also made declaration and sent a written communication dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Rs. 24,86,31,354 (Rupees Twenty Four Crores Eighty Six Lakhs Thirty One Thousand Three Hundred and Fifty Four Rupees). The details of the same have been annexed (Exhibit-6). The principal amount in default under the cash credit facilities as on 30.04.2017 is claimed to be Rs. 17,50,00,000 (Rupees Seventeen Crores Fifty Lakhs). In addition, the default amount towards the overdue interest and penal interest aggregates to Rs. 2,69,14,420 (Rupees Two Crore Sixty Nine Lakhs Fourteen Thousand Four Hundred and Twenty). The 'corporate debtor' defaulted the cash credit facilities in 30th June, 2016. The principal amount in default under the letter of credit facilities as on 30.04.2017 is claimed to be Rs. 21,80,57,874 (Rupees Twenty One Crores Eighty Lakhs Fifty Seven Thousand Eight Hundred and Seventy Four). In addition, the default amount towards the overdue interest and penal interest aggregates to Rs. 3,51,64,783 (Rupees Three Crore Fifty One Lakhs Sixty Four Thousand Seven Hundred and Eighty Three). The corporate debtor defaulted the letter of credit facilities in 23th May, 2016. Further details of the defaulted amount and the period of default has been disclosed (Exhibit-7). The t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecation dated April 16, 2013, as amended by the composite deed of hypothecation dated June 18, 2013 (collectively, the "RTL Deed of Hypothecation") executed by the Corporate Debtor in favour of the BoB consortium in respect of the RTL Facility has been annexed (Exhibit -11). A copy of the joint deed of hypothecation dated April 16, 2013, (the "WC Deed of Hypothecation") executed by the Corporate Debtor in favour of the BoB consortium in respect of the WC Facility has been annexed (Exhibit - 12). 8. The following Corporate Entities have furnished the Corporate guarantees:- (a) Ultra Home Construction Private Limited; and (b) Amrapali Smart City Private Limited Both of them have guaranteed the obligations of the corporate debtor under the Facility Agreement and WC Agreement executed by the Corporate Entities in favour of the consortium banks. Copies of the Corporate Guarantee Agreements have been placed on record (Exhibit-13). 9. The Financial Creditor also placed on record the Personal Guarantees of the Corporate Debtor furnished Mr. Anil Kumar Sharma, Mr. Shivpriya and Mr. Ajay Kumar, All of them have guaranteed the obligations of the Corporate Debtor under the Facility Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stent overdues; (e) A copy of the sanction letter in respect of RTL Facility dated November 30, 2012 issued by BOB; and (f) A copy of the sanction letter in respect of WC Facility dated November 30, 2012 issued by BoB. The copies of the aforementioned documents proving existence of 'financial debt' have also been annexed (Exhibit - 18, 19, 20, 21, 22 and 23). 15. The application has been duly presented by Ms. Archana Mishra on the basis of authorization dated 03.02.2017 (Exhibit-1). 16. The 'corporate debtor' has opposed the admission of the application by arguing that the demand of Rs. 51,77,50,626/- for Term Loan Facility, Rs. 20,19,14,220/- for Cash Credit Facility & Rs. 25,32,22,657/- for Letter of Credit is wholly arbitrary. The applicant is part of consortium of banks and the Facility Agreement was executed for providing various loan facilities of Rs. 162,80,00,000/-. In the said agreement, the financial creditor- Bank of Baroda and Union Bank of India 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 agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respondent has further stated that delay has been caused on account of the order dated 07.04.2015 passed by the National Green Tribunal which had banned construction activity in the area (Annexure R/2). As a result, construction was completely suspended. Reference has also been made to the Joint Lender meetings but no substantial resolution could be achieved. The objection raised by the 'Corporate Debtor' has been noticed to highlight their wishful thinking. There is no provision in the Code to take into consideration any talks between the 'corporate debtor' and 'Joint Lender Forum'. These are wholly irrelevant considerations. However, the fact remains that till date substantial outstanding amount in default is payable by the 'Corporate Debtor' which fulfil the requirement of Section 4 of the Code. Therefore, this objection too would not cut any ice. 20. A further question which arises for consideration is whether the petitioner has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 financial creditor. 7(1) ...................... 7 (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. 7(3) .................... 7(4) .................... 7 (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application; Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 property is occupied by or in the possession of the corporate debtor." 26. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. 27. The Interim Resolution Professional shall perform all his functions contemplated, interalia, by Sections 15, 17, 18, 19, 20 & 21 of the Code. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the day to day affairs of the 'Corporate Debtor'. In case there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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