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TMI Blog2017 (12) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) has also been obtained by the Bank with regard to the default. In view of the aforesaid discussion, the default having occurred and the application being complete, the instant application deserves to be admitted. The petition is, therefore, admitted declaring the moratorium prohibiting all of the following as provided in section 14(1) of the Code - CP (IB) NO. 75/CHD/HP/2017 - - - Dated:- 3-11-2017 - MR. R.P. NAGRATH, J. For The Petitioner : D.K. Gupta, Advocate Rajesh Sharma, Sr. Manager and Rajiv Khurana For The Respondent : Bhal Singh Malik and Amit Mahajan, Advocates JUDGMENT This petition has been filed by Punjab National Bank as a Financial Creditor under Section 7 of Insolvency and Bankruptcy Code, 2016 (for short to be referred hereinafter as the code ) in Form No.1 prescribed under Rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating corporate insolvency resolution process against the respondent-corporate debtor. 2. The petitioner-bank was incorporated on 31.03.1970 under Banking Companies (Acquisition Transfer of Undertakings) Act, 1970, having its Head Office at Bikhaji Cama Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editor for grant of credit facility to the tune of ₹ 1100 lacs by way of term loan and ₹ 300 lacs by way of ILC/FLC which were sanctioned vide letter dt.19.07.2007. The loan application is at Annexure-14 and the sanction letter is at Annexure-16. The loan was granted on the basis of resolution of Board of Directors of the respondent-corporate debtor dated 23.07.2007, copy of which is at Annexure-15. The corporate debtor along with the mortgagors and guarantors executed loan and security documents Annexure-17 to 24 on 01.08.2007. 6. The corporate debtor also approached the financial creditor for grant of Bank Guarantee of ₹ 50 lacs for expansion of the business and the loan application for that is dated 01.10.2007, Annexure-25 and the same was sanctioned vide letter dt.05.11.2007 Annexure-26. The resolution dated 10.10.2007 of the Board of Directors authorising the directors to furnish securities and sign/execute the loan/security documents is at Annexure-27. Various guarantee agreements and counter indemnities executed by other persons including some companies are from Anenxure-28 to 31, apart from certain equitable mortgages of immovable properties by deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of the resolution is at Annexure- 49. The corporate debtor executed fresh documents in respect of availing FITL and re-schedulement of term loan (from Annexure 50 to 55). Equitable mortgage of various properties were also created along with execution of term loan. These documents are from Anenxure-56 to 59. Details of the mortgage along with particulars of the properties have also been given. 11. The corporate debtor further approached the financial creditor for fresh FITL of ₹ 1.71 crores as well as re-schedulement of existing term loan of ₹ 1300 lakhs and FITL of ₹ 1.86 crores for expansion of the business and the relevant documents in this regard are at Annexure-62 to 79, including the letters of continuities. 12. Before filing of this petition, the financial creditor issued demand notice dated 11.04.2017 to the corporate debtor by Registered Post and to all the guarantors to pay the amount within 15 days and copy of this notice is at Annexure-86. Revised demand notice dated 05.08.2017 was also sent wherein total amount in default was stated to be ₹ 20,73,90,189/- as on 31.07.2017 with further interest w.e.f. 01.08.2017. 13. Along with the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by RBI by virtue of the powers conferred on it under Sections 21 and 35A of the Banking Regulation Act, 1949 vide notified circulars at Annexure CD/2 and CD/3 of the reply. 16. It is further stated that the respondent is a specialised company incorporated to undertake designs, consultancy and implementation of Small Hydel Power Projects on turnkey basis as well as own them on the principles of build operate. The company has been promoted by a group of experienced technocrats, professionals and non-resident Indians, who have a wide ranging experience in various fields related to Hydel Power Projects. This company has been set up as a first private sector SHP project in Himachal Pradesh connected to 33 KV Grid and was selected on its merits by a reputed International Agency. In addition to the Power Station, the company also built Transmission Line and 33 KV Grid Station for HPSEB at Palchan to provide interconnectivity to Solang SHP Project. Solang SHP project has been running the Project since June, 2002. The project being the first one in the Hilly region has been considered as a model for SHP Sector and was used as educational/training for technical persons by AHEC, Roorke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arted in April, 2010. 20. Even in April 2011, the company was advised not to have further construction activities as there was a petition filed in the High Court regarding environmental issues. In November, 2011 the company was advised that there was a ban on all kinds of construction in the area and the matter was cleared in December, 2011 to resume the works from April, 2012 onwards. Documents of the order of Hon ble High Court of Himachal Pradesh in this regard are at Annexure-CD/6 (colly). It is stated that the company has paid interest to the Bank till 2015 which was more than what they had disbursed to the company. It also wrote a letter to the Bank dated 20.05.2016 requesting them to take a sympathetic and practical view keeping in mind the genuine problems being faced by them with regard to the implementation of the project and the Government of Himachal Pradesh has given extension till 31.03.2018 and the Bank/the financial creditor also extended the bank guarantee till 31.03.2017 and no action could be taken till the validity of the bank guarantee. Further, Government of India has also given directions that all the stressed renewal energy projects be given long-term fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be accepted as the application for loan was for grant of ₹ 11 crores as a term loan with LLC/FLC of ₹ 3 crores with an overall ceiling of ₹ 11 crores. The sanction letter Annexure-16 dated 19.07.2007 is filed by the petitioner bank where under the aforesaid loans were sanctioned by the bank. So, the protection claimed on behalf of the respondent in this regard, under the aforesaid Act would not be attracted to the facts of the present case. 25. Otherwise on facts, here is no dispute with regard to the grant of loan facilities or about the respondent-corporate debtor being in default. 26. In Innoventive Industries Ltd. v. ICICI Bank Ltd. and Ors. Civil Appeal Nos. 8337-8338 of 2017 (MANU/SC/1063/2017) the Hon ble Supreme Court held that in case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -. So on perusal of these statements of accounts, the version of the petitioner-financial creditor in respect of total amount in default to be ₹ 20,96,67,934 as on 20.08.2017 is established. There was no dispute in the written reply/objections to the execution of various documents of loans relied upon by the Bank or about the outstanding amount as per the statement of accounts. There is, in fact, an admission by the corporate debtor with regard to the loans in its balance sheets for the year ending 31.03.2014, 31.03.2015 and 31.03.2016 which are attached as Annexure-89 to 91 with the affidavit dated 28.09.2017 of the financial creditor. 31. Learned counsel for the financial creditor refers to the account statements at Page 67 of the paper book of the compliance affidavit which are part of Annexure-91, the annual report. In this balance sheets, the corporate debtor has shown an amount of ₹ 9,06,93,772/- against the entry in respect of PNB, Mohali relating to term loan Account No.-1; an amount of ₹ 1,62,41,226/- in term loan Account No.2; an amount of ₹ 67,22,864/- in term loan-FITL-I and an amount of ₹ 67,06,729/- in term loan-FITL-II. 32. This ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. 35. The financial creditor has produced sufficient evidence of default which is rather not in dispute. The Interim Resolution Professional has been proposed and written communication in Form No.2 has already been furnished by the proposed Interim Resolution Professional and as already observed, the same is in order. Necessary declaration has been given in the application form by the authorised representative to the effect that to the best of his knowledge the proposed IRP is fully qualified and permitted to act as a Resolution Professional in accordance with the provisions of the Code read with Rules and Regulations framed thereunder. 36. Sub-section (4) of Section 7 of the Code requires the adjudicating authority to ascertain the existence of a default from the records of information utility or on the basis of other evidences. There is no dispute about the fulfilment of the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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