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TMI Blog2017 (12) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... e in order to avoid the triggering of Insolvency process so that the Financial Debtor may continue with his enterprise and there is no demoralising effect. Alas! all these efforts are in vain. We find that there is admission with regard to loan and its default. The Financial Creditor has also named the Interim Resolution Professional and it satisfies all the requirements of Section 7 of the Code. Therefore, the petition warrants admission and the same is hereby admitted. - IB-245(PB)/2017 - - - Dated:- 24-11-2017 - MR. M.M. KUMAR AND MS. DEEPA KRISHAN, JJ. For The Appellant : Sumesh Dhawan and Ms. Vatsala Kak, Advs. For The Respondent : Biswajit Das, Akhilesh and Ms. Anjali Verma, Advs JUDGMENT M. M. Kumar, President - The Financial Creditor -Indiabulls Housing Finance Limited has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) with a prayer to trigger the Corporate Insolvency Resolution Process in the matter of Deltronix India Private Limited (for brevity then Corporate Debtor ). It is appropriate to mention that the financial creditor is a company incorporated under the Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulls Housing Finance Ltd. granted various loans to the Corporate Debtor as follows:- (a) Loan for an amount of ₹ 16,09,57,000/- (Rupees Sixteen Crores Nine Lacs Fifty Seven Thousand Only) vide Agreement dated 18.11.2010. (Loan 1) Date of Disbursal: 24.11.2010 (b) Loan for an amount of ₹ 7,55,66,552/- (Rupees Seven Crores Fifty Five Lacs Sixty Six Thousand Five Hundred and Fifty Two Only) vide Agreement dated 23.08.2012. (Loan 2) Date of Disbursal: 25.08.2012 (c) Loan for an amount of ₹ 4,97,32,752/- (Rupees Four Crores Ninety Seven Lacs Thirty Two Thousand Seven Hundred and Fifty Two Only) vide Agreement dated 27.06.2013. (Loan 3) Date of Disbursal: 27.06.2013 (d) Loan for an amount of ₹ 1,38,00,000/- (Rupees One Crore Thirty Eight Lacs Only) vide Agreement dated 21.07.2015. (Loan 4) Date of Disbursal: 21.07.2015 (e) Loan for an amount of ₹ 1,00,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue of security of 2,00,000 shares at par i.e. ₹ 10/- per share is approximately ₹ 20,00,000/- (Rupees Twenty Lacs Only). 9. A record of default is also available with the Credit Information Companies like the status classification report of the Corporate Debtor issued by the TransUnion CIBIL dated 27.07.2017 (Annexure A-13). 10. The financial creditor has then attached a list of other documents to the application to prove the financial debt, the total amount due and the date of default. Those documents are as under:- (a) Legal Notices dated 21.07.2017 for recalling loan facilities sanctioned to the Corporate Debtor are annexed and marked as Annexure A-14 (Colly). (b) Copies of Statement of Account and Foreclosure of the Loan Facilities of the Corporate Debtor are annexed and marked as Annexure A-15 (Colly.) 11. Mr. Dhawan, learned counsel for the petitioner has argued that under five agreements loan was advanced to the Corporate Debtor and it was specifically mentioned in the loan agreement that delay in payment of EMI was not to require issuance of notice or reminder and it was to render a Corporate Debtor liable to pay additional rate of interest. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt within 4 days from the date of issue of this notice, together with any interest, penal interest, Cheque Bouncing Charges, cost and other charges which may fall due, failing which the Secured Creditor will take remedy under civil as well as criminal law to recover the loan amount. 12. Mr. Dhawan, learned counsel has also pointed out that all the requirements of Section 7 of the Code have been met. The Interim Resolution Professional has been duly proposed in part III of the application i.e. Mr. Sajeve Bhushan Deora who has filed his declaration. 13. Mr. Biswajit Das, learned counsel for the Corporate Debtor opposed the admission and has argued that basic object of Insolvency and Bankruptcy Code is to explore a negotiated resolution with presupposed compromise offer from the Financial Creditor as a penultimate exercise prior to triggering of Corporate Insolvency Resolution Process and that such a harsh process of CIRP should not be triggered at the drop of a hat and for every kind of default particularly when the Financial Debtor is solvent. In essence the argument of Mr. Das is that a fair opportunity to reach an amicable settlement should be explored before actually trig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect investment which is likely to come to the Financial Debtor and the same can be utilised for payment of the total amount of foreclosure to the Financial Creditor. 14. We have thoughtfully considered the submissions made by the learned counsel for the parties and are of the view that the instant petition merits admission. It is established on facts that before taking extreme steps of foreclosure on 21.07.2017 was taken the Financial Debtor has committed default on more than one occasion. The aforesaid facts have been highlighted in paras 6 8 of the notice dated 21.07.2017 (supra). In the aforesaid paras the Financial Creditor has pointed out to the Financial Debtor about irregularity in payment of EMI s and the last part payment made on 30.06.2017. He had failed to repay instalments as per the terms of the loan agreement. A reference has also been made to the letter dated 14.03.2017 when the Financial Debtor was called upon to regularize the repayment which has not been done despite repeated reminders in writing as well as oral request sent by the Financial Creditor. There is adequate notice with regard to breach of terms of the loan agreement and request made for payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 interest therein; (c) any action to foreclose, recover or enforce any security interest created 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. 17. 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, are n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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