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TMI Blog2017 (11) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code contained a non-obstante clause in the widest terms possible. The parliament in its wisdom is presume to have knowledge of the provision of various statues prevailing earlier to the enforcement of the Code. Thus this petition is admitted. Shri Mukesh Mohan who is duly registered with Insolvency and Bankruptcy Board of India IBBI/IPA-001/IP-P00018/2016- 17/10042) 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 23.08.2017 in connection with the application to initiate Corporate Insolvency Resolution Process. The disclosure has been made in the letter dated 23.08.2017. No disciplinary proceedings are pending against him. - C.P. NO. IB-314 (PB)/2017 - - - Dated:- 2-11-2017 - MR. M. M. KUMAR AND MS. DEEPA KRISHAN, JJ. For The Appellant : Milind Rastogi, Navneet Gupta and Ms. Shilpa Thakur, Advocates For The Respondent : Ravi Data and Rajesh Sharma, Advocates JUDGMENT M. M. KUMAR, PRESIDENT The ICICI Bank Limited (for brevity Financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies to the Corporate Debtor comprising of Fund Based facilities of ₹ 11.00 Crores and Non Fund Based facilities of ₹ 19.00 Crores aggregating ₹ 30.00 Crores. 22.07.2014 The Credit facilities were modified vide CAL No. 45/W36DEL/72114 dated 22.07.2014 whereby the Financial Creditor had sanctioned revised Fund Based Facilities of ₹ 17.00 Crores and Non Fund Based Facilities of ₹ 12,00 Crores aggregating ₹ 29.00 Crores. 27.03.2015 The Corporate Debtor defaulted in payment of the dues not only to the Financial Creditor but also to other members of Consortium led by Punjab National Bank ( PNB Consortium ). Pursuant to the Joint Lender's Forum meeting held on 04.03.2015, the credit facilities sanctioned by the members of PNB Consortium were restructured and accordingly, the Financial Creditor vide CAL No. 45/W36DEL/81978 dated 27.03.2015 restructured its credit facilities as under :- Cash Credit Rs, 13.11 crores Working Capital Term Loan ₹ 9.19 crores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid OA and the OA is still pending for consideration. In the aforesaid OA, with respect to cash credit ₹ 14,55,69,105.89, working capital term loan ₹ 9,72,99,188.88, funded interest term loan of ₹ 3,80,32,390.50 aggregating ₹ 28,09,00,685.10 have been claimed by the Financial Creditor which were due as on 20.10.2016 along with pendent and future interest @ 17.35% per annum w.e.f. 21.10.2016 till date of payment, along with all costs, charges, expenses etc. Delhi. A copy of OA No. 814/2016 (with annexures) filed before DRT-III, New Delhi with copy of order dated 22.11.2016 have also been placed on record (Annexure FC29 (colly). 9. The Financial Creditor further asserted that other members of PNB Consortium namely Bank of Baroda have also filed their respective claim of ₹ 32,47,29,221.00 against the Corporate Debtor before DRT, New Delhi and same is also pending ., consideration. 10. The Financial Creditor has also invoked the provisions of SARFAESI Act and issued a notice dated 14.07.2016 under Section 13(2) of the SARFAESI Act calling upon, inter alia, the Corporate Debtor to pay a sum of ₹ 26,95,31,014.20 along with further inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Guarantors have furnished the Corporate guarantees:- (a) M/s Ramdeo Polyester Pvt. Ltd. (b) M/s Shyam Raj Colour Chem Pvt. Ltd. Both of them executed their corporate guarantees all dated 17.06.2015, inter alia, guaranteeing that in the event of default by the Corporate Debtor, they shall be jointly, severally and co- extensively liable to make the payment of the dues under the credit facilities granted by the PNB Consortium. Copies of deeds of corporate guarantee dated 22.07.2014 have also been placed on record (Annexure-FC9 (colly). 14. The Financial Creditor also placed on record the Personal Guarantees of the Corporate Debtor namely Mr. Sanjiv Agarwal, Mrs. Sangeeta Agarwal and Mr. Satya Narain Agarwal. All of them executed their respective unconditional and irrevocable deed(s) of guarantee all dated 17.06.2015, inter alia, guaranteeing that in the event of default by the Corporate Debtor, they were to be jointly, severally and co-extensively liable to make the payment of the dues under the credit facilities granted by the PNB Consortium. Copies of deeds of guarantee dated 27.03.2015 have also been placed on record (Annexure-FC13). 15. The estimated value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trading is suspended due to penal reasons, Equity share of Tirupati Inks Limited was last trade at ₹ 1.59 on May 02,2017 Copies of the balance sheet for the year 2015-16 and valuation reports of various immovable properties have also been placed on record (Annexure-FC31 FC32). 16. The Financial Creditor further asserted that other members of PNB Consortium have also invoked the provisions of SARFAESI Act and issued their respective notices. The possession of the aforesaid mortgaged properties as described in para 16 were taken by Punjab National Bank, the Lead Bank, and were put to auction on 16.08.2017. As per the information provided to the Financial Creditor by the Punjab National Bank, it had received one bid for a sum of Rs. One Crore Twelve Lacs Only from one bidder who submitted his bid to purchase the Duplex House No. 143, Swarnim Vihar, Sector 82, Noida, UP and deposited 25% of the total bid price. However, the rest of the properties could not be sold for want of any bid. The Financial Creditor stated in his application that once the entire sale consideration is deposited by the bidder, the same shall be distributed proportionately a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor against the Corporate Debtor has admitted by the Corporate Debtor. Issuance of various sanction letters with respect to credit facilities from time to time by the Financial Creditor has been conceded by him. It was then submitted that consent from other members of consortium has not been obtained. 20. The objection would not require any serious consideration because Explanation to section 7(1) clarifies that for the purposes of section 7 a default includes a default in respect of financial debt, owed not only to the applicant-financial creditor but to any other financial creditor of the Corporate debt. Rule 4 of the Insolvency and Bankruptcy (Adjudicating Authority) Rules, 2016 also clarify that a financial creditor either by itself or jointly could file an application. Therefore, on the bare perusal of statute such an objection cannot be sustained. 21. The Corporate Debtor has also asserted that they had various plans of business expansion including stabilization of a new product range but the said plan could not materialize due to lack of support from the consortium of bankers. They further stated that deterioration in working capital availability has put strain on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the perusal of the record, we are satisfied that the Financial Creditor has proved by overwhelming evidence that default has occurred, which meets the requirement of Section 3(11) and (12) read with Section 7(3)(a) and Section 7 (5) of the Code. A copy of CRILC Report (Annexure-FC33), a copy of Banker s Book as per Banker s Evidence Act, 1891 (Annexure- FC30), various letters issued by Financial Creditor including the one declaring the account as NPA show overwhelmingly the default committed by the Corporate Debtor . We further find that the application is complete in all other respects as the Insolvency Professional, Mr. Mukesh Mohan has been duly proposed and he has also made full declaration stating that no disciplinary proceedings are pending against him. 27. The objection concerning acceptance of plan would not warrant acceptance because a possibility of any viable/stabilisation plan was within the domain of the consortium banks or any other agency competent to accept such a plan for a valid consideration. For the purpose of admission Section 7 (5) of the Code lays down that the Adjudicating Authority should be satisfied with regard to three factors namely a default s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fessional. He has filed his certificate of registration with Insolvency and Bankruptcy Board of India. He has also filed his written communication dated 23.08.2017 in connection with the application to initiate Corporate Insolvency Resolution Process. The disclosure has been made in the letter dated 23.08.2017. No disciplinary proceedings are pending against him. 29. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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