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TMI Blog2017 (12) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... etition deserves to be admitted. The petition is thus admitted and the moratorium is declared for prohibiting all the following in terms of sub-section (1) of Section 14 of the Code - C.A. (IB) NO. 72/CHD./HRY/2017 - - - Dated:- 24-11-2017 - R. P. NAGRATH, J. For The etitioner/Financial Creditor : Mr.Sanjay Bhatt Advocate For The Respondent/Corporate Debtor : Mr.Anand Ch hibbar, Senior Advocate And Mr.Gaurav Mankotia, Advocate JUDGMENT This petition has been filed by Bank of India as a Financial Creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short to be referred here-in-after as the Code ) by moving application in Form 1 as prescribed by Rule 4 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules) to initiate the insolvency resolution process against the Respondent- Corporate Debtor. 2. The petitioner Bank is a Body Corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. The petition was instituted by the Bank through its Branch Office in New Delhi. Mr. Pawan Kumar is the Chief Manager of the Branch through whom the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The particulars of the principal office and corporate office of the Respondent-Corporate Debtor have also been given. 5. The facts of the case, briefly stated, are that on 07.11.2011, the Respondent-Corporate Debtor approached the petitioner Bank for seeking financial assistance for ₹ 30 Crores including Export Packing Credit and Post Shipment Finance Facilities. The loan was sanctioned vide letter dated 15.12.2011 which was duly accepted by the Corporate Debtor and its guarantors. The request letter of the Corporate Debtor is at Annexure A-11 and sanction letter is at Annexure A-12. Copy of the Board resolution of the Corporate Debtor dated 16.12.2011 is at Annexure A-13. The amount sanctioned under both these heads is ₹ 30 Crores each, but the maximum amount that could be availed under both the facilities could not exceed ₹ 30 Crores as evident from the documents Annexure A-12 and A-13. The other documents executed by the Corporate Debtor are the demand promissory note dated 22.12.2011; Credit Facility Agreement; Agreement of Hypothecation of plant, machinery and stock etc.; Letter of Undertakings, Deed of Guarantee, copy of Omnibus Guarantee, all of the even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 28.01.2016 requesting the Corporate Debtor to discharge its liabilities, but the Corporate Debtor failed to discharge its liabilities. The notice sent under the SARFAESI Act, 2002 is at Annexure A-34. The notice dated 25.10.2015 sent to the Corporate Debtor declaring the account as NPA dated 25.10.2015 is at Annexure A- 35 requesting for repayment. Further notice dated 24.12.2015 was also issued intimating the Corporate Debtor that the account was declared as NPA on 20.11.2015. There are certain subsequent communications to the Corporate Debtor to pay the amount, which was not paid. 9. The petitioner Bank has also attached the copies of statement of account of the Respondent-Corporate Debtor certified under the Banker s Books Evidence Act, 1891 to support the contention about the outstanding amount of default. The statements of account are at Annexure A-32 and the Certificate under the Banker s Books Evidence Act is at Annexure A-33. The petitioner Bank has also relied upon the report of CIBIL dated 08.08.2017 as evidence in proof of the default and copy of the said report is at Annexure A-31. The other Financial Creditor of the Corporate Debtor was also informed vide letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... National Bank is ₹ 12.93 crores after payment of the aforesaid amount. Further the Financial Creditor has declared the security furnished by the Corporate Debtor and 50% of the payment has been made. Therefore, filing of this application is stated to be an effort to block all the endeavours of the Corporate Debtor for resolution of the financial debt. The respondent has attached copy of the civil suit in USA Court and out of Court settlement there and letters pertaining to the Punjab National Bank, with the reply. 14. I have heard the learned counsel for the petitioner and the learned senior counsel for the Respondent-Corporate Debtor and have perused the records. 15. The first issue to be determined is whether the Corporate Debtor has committed a default for enabling the Financial Creditor to file application before the Adjudicating Authority in terms of Section 7 of the Code. The term default is defined in sub-section (12) of Section 3 of the Code as meaning non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be. There is even no dispute in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus shown that the Financial Creditor has produced the record of evidence of default as prescribed in the application form required to be filed by the Financial Creditor. 20. The learned counsel for Respondent-Corporate Debtor submitted that the Punjab National Bank is the Lead Bank, which has released the property of the Corporate Debtor after paying of certain amount as mentioned in the reply. In reply thereto, the learned counsel for petitioner has referred to letter dated 02.06.2017 sent by the petitioner to the Punjab National Bank. The said letter is Annexure A-37 and the Punjab National Bank was informed that it was a Lead Bank under the Multiple Banking Arrangement. The petitioner Bank had given its consent for taking recovery action under SARFAESI Act and filing of suit, but no progress has been made. The Punjab National Bank was specifically informed that the Financial Creditor has approved the initiation of CIRP under Insolvency and Bankruptcy Code, 2016 and also proposed the name of Mr. Anil Kohli as Interim Resolution Professional. Punjab National Bank was advised to co-operate/support in the recovery of dues of both the Banks. The learned counsel submitted that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterim Resolution Professional is at Annexure A-7. Mr. Anil Kohli has been registered with Insolvency Bankruptcy Board of India vide Registration No. IBBI/IPA-001/IP/P00112/2017-18/10219. He has given the necessary information. He has been appointed as Interim Resolution Professional in one case and as Resolution Professional in two cases already, but certified that there are no disciplinary proceedings pending against him. The written communication sent by Mr. Anil Kohli in Form No.2 is in order. 23. No defect in the application has been pointed out and complete information has been given. 24. In view of the above, the instant petition deserves to be admitted. 25. The petition is thus admitted and the moratorium is declared for prohibiting all the following in terms of sub-section (1) of Section 14 of the Code: (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 beneficia ..... 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