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TMI Blog2017 (11) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted a default in repayment of the outstanding amount. Moreover, the application of the financial creditor is complete and there is no disciplinary proceeding pending against the proposed IRP. We are satisfied that the present application is complete and the applicant financial creditor is entitled to claim its outstanding financial debt due to the corporate debtor and that there has been a default in payment of the financial debt. Therefore, in terms of Section 7(5)(a) of the Code, the present application is admitted. A moratorium in terms of section 14 of the Code is being issued. - Company Petition No. (IB)-302(ND)/2017 - - - Dated:- 25-9-2017 - MS. INA MALHOTRA AND MR. S.K. MOHAPATRA, JJ. For The Financial Creditor : Artaj Singh, Adv. For The Corporate Debtor : Varsha Banerjee and Kunal Godhwani, Advs. ORDER Per : S.K. Mohapatra, Member (Technical) 1. This is an application filed under section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) with a prayer for initiation of Corporate Insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Indemnity dated 21.11.2009 ( Annex I-L ) f. Undertakings dated 21.11.2009 ( Annex I-M ) 6. In addition, the credit facility was secured by continuing guarantee dated 24.04.2010 of M/s Carnation Reality Pvt. Ltd. who also created mortgage by deposit of title deeds on 24.04.2010 in respect of the properties reflected at para 9 of the application. In respect of the security documents executed by the company, charge was registered with ROC under the provisions of the Companies Act, 1956. The relevant certificate of registration of charge is at Annexure 1-P. 7. It is stated that the Corporate Debtor was unable to keep up repayment of Term Loan as well as interest as agreed in terms of the term loan agreement and approached the Financial Creditor for restructuring of credit facility by way of deferment of instalments of Term Loan instalment by 2 years and sanction of FITL (Funded Interest Term Loan) for interest amount for 2 years from 1.06.2013 for the financial year 2013-14 2014-15 and to be repaid from 2015-16. 8. Consequently, the Financial Creditor agreed to restructure of debt by way of deferment of Term Loan instalments by 2 (two) years and sanction of FJTL for in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r/AGM/DGM/GM seeking permission to initiate corporate insolvency process before the Tribunal in terms of recovery division Circular No. 9 of 2017 dated 21.02.2017. A copy of the said circular has been placed on record. Consequently, the head office of the applicant bank conveyed permission of the competent authority on 17.04.2017 for referring the case to the Tribunal for resolution in respect of the respondent corporate debtor. Accordingly, the specific authorization to file application under section 7 of the Code in favour of Mr. O.P. Arora, Chief Manager of the applicant bank, was accorded on 10.08.2017 which reads as follows: The permission for initiating action under the Insolvency and Bankruptcy Code, 2016 against M/s Carnation Auto India Pvt. Ltd. has been received from the Competent Authority. You are hereby permitted to sign, file, and verify the Application under the Insolvency and Bankruptcy Code, 2016 against M/s Carnation Auto India Pvt. Ltd. on behalf of Bank immediately and submit further report from time to time. 13. From a perusal of the aforesaid letter it has been clear that the representative of Applicant Bank was specifically authorized to file this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery of Debts Due to Banks and Financial Institutions Act, 1993, is no bar for initiation of insolvency proceedings under the Code, in view of the overriding effect given in the provisions of Section 238 of the Code. In the facts once the default is more than one lac, the objection of the Respondent that the amount due has not been adjudicated upon cannot stand. 17. The Respondent has further alleged that the amount of claim made before DRT and in the present application differs. The variance in the amount of default appears to be on account of difference of dates. Needless to say that there has also been restructuring of the loan facilities. In any case the corporate debtor would be entitled to raise objections of any mismatching of amount before the IRP/Committee of Creditors. What is material is that the default is at least one lac, which is clearly satisfied in this case. 18. It has been objected by the corporate debtor that certification of the proposed Interim Resolution Professional (IRP) is not in conformity with the requirement of the Code and the application filed by the applicant bank is incomplete in this aspect. From the perusal of records, it is seen that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. 24. Name of Mr. Mukesh Mohan, IBB1 No. IBBI/IPA-001/IP- P00018/2016-17/10042, was proposed by the applicant financial creditor for appointment as Interim Resolution professional (IRP). Mr. Mukesh Mohan has affirmed that he is a registered insolvency professional and that no disciplinary proceeding is pending against him. He has also given his consent in Form-2 for appointment as IRP in the present matter. In the facts Mr. Mukesh Mohan, is appointed as Interim Resolution Professional, who shall take statutory steps as envisaged under sections 15, 17 and 18 of the Code. Since, the tenure of the 1RP under section 16(5) shall not exceed 30 days from the date of his appointment, the IRP is directed to submit his report at the earliest but not later than 24.10.2017. 25. The order of moratorium shall have effect from the date of this order till the completion of the corporate insolvency resolution process as per Sub-Section (4) of section 14 of the Code. Let the copy of the order be supplied to the parties including IRP. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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