9911796707
TMI Blog2018 (1) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... ember, 2017; copies of entries in the bankers' book maintained by the Petitioner Bank as per the Bankers' Books Evidence Act, 1891; copies of Statement of Accounts; and copies of other documents proving existence of Financial Debt. The Petitioner Bank has proposed the name of an Interim Resolution Professional and filed his Written Communication. Moreover, this Petition filed by the Financial Creditor is complete in all respects. Therefore, there are no grounds to reject this petition. This Application deserves to be admitted and it is accordingly admitted under Section 7(5) of the Code. X X X X Extracts X X X X X X X X Extracts X X X X ..... acility was enhanced to ₹ 23 Crores with the sub-limits as stated in the Third Schedule; (ii) Limits under the Letter of Credit Facilities was enhanced to ₹ 24 Crores. The total debt granted to the Corporate Debtor on further renewal and enhancement of the above said facilities under the Second Supplemental Working Capital Consortium Agreement is ₹ 47,00,00,000. 3.3 Thereafter, pursuant to execution of Third Supplemental Working Capital Consortium Agreement dated 31st January, 2011 the above said facilities were further renewed and enhanced as detailed below as per Third Schedule of the said Agreement; (i) Limits under the Cash Credit Facility was enhanced to ₹ 27 Crores with certain sub-limits as per the Third Schedule of the said Agreement; (ii) Letter of Credit Facilities upto an overall limit of ₹ 44.43 Crores along with a sub-limit in the form of Buyer's Credit Facility upto a limit of ₹ 27 Crores; (iii) Forward Cover limit upto ₹ 0.43 crores; (iv) A Corporate Loan of ₹ 5.83 Crores; (v) A Short Term Loan of ₹ 25 Crores The total debt granted to the Corporate Debtor under the Third Supplemental Working Cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with outstanding amounts thereof 1. Gayatri Trading Co. 08491LCIS0005015 June 15, 2015 September 14, 2015 10, 23,75,000 9,21,37,500 2. Gayatri Enterprise 08491LCIS0004515 May 28, 2015 August 28, 2015 9,35,44,500 7,92,62,265 3. Akshar Commodity 08491LCIS0004215 May 09, 2015 August 11, 2015 7,47,85,200 9,80,783 Total 17,23,80,548.00 5. According to the Petitioner, as per the Computation of amount of default on part of the Corporate Debtor the following are the amounts in default; Computation of amount of default on part of Corporate Debtor as on August 31, 2017 and days of default Cash Credit Facility 142,74,67,293.50 33,46,37,103.30 460,16,210.00 180,81,20,606.80 August 31,2015 731 Letter of Credit Facility 17,23,80,548.00 6,72,15,397.00 69,20,900.00 24,65,16,845.00 August 11, 2015 751 Total 159,98,47,841.50 40,18,52,500.30 52,93,711.00 205,46,37,451.80 The total amount in default as on August 31, 2017 was ₹ 205,46,37,451.80. 5.1 The account was classified as NPA w.e.f. November 09, 2015. Vide notice dated March 01, 2016, the Facilities provided to the Corporate Debtor were recalled and the Corporate Debtor was asked to pay the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 7th May, 2016. 10. According to the Petitioner BOB, there is a debt due and payable from the Corporate Debtor and the Corporate Debtor has committed default in payment of such debt. 11. Petitioner served a copy of the Application on the Corporate Debtor. Corporate Debtor appeared through their Counsel and filed Objections. The first objection raised on behalf of the Corporate Debtor is that though the Petitioner was directed to serve notice of next date of hearing to the Corporate Debtor by order passed by this Adjudicating Authority on 23rd October, 2017 the Petitioner served such notice on the Corporate Debtor only on 31.10.2017 and Corporate Debtor was required to file objections within one week. It appears from the record that the Corporate Debtor filed their Objections on 7.11.2017, i.e., one week from the date of service of notice on the Corporate Debtor. 12. The second objection raised is the present Petition is filed by a power of attorney holder and such power of attorney holder cannot file the Petition. In this case apart from the General Power of Attorney dated 15th December, 2009, there is a Board Resolution dated 14th November, 2017 which clearly authorised all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lender Banks agreed to wait for one month for routing of transaction to improve and company to put up some concrete plan of recovery/resolution otherwise NCLT route will be explored. Therefore, the objection raised by the Corporate Debtor on this count is not entertained. 14. Heard the learned counsel appearing for the Petitioner and the Respondent. It is not in dispute that there is a debt between the Financial Creditor and the Corporate Debtor. There is no dispute about the fact that the debt is a 'financial debt'. The whole controversy, in this case, is whether there is any default in payment of the financial debt as contemplated in Section 3(12) of the Code. 15. Section 3(12) of the Code reads as follows; "3. In this Code, unless the context otherwise requires,- (1) to (11)………. (12) "default means 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." 16. Therefore, in order to constitute 'default' within the meaning of Section 3(12) of the Code, the debt must be due and payable. 17. The contention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aroda. 22. In the decision of the National Company Law Tribunal, Principal Bench, New Delhi, relied upon by the learned counsel appearing for the respondent in the matter of Jeevan Credit & Leasing (P.) Ltd. v. King Airways Ltd. [Company Application No.(IB) 13/PB/2017, dated, 8-3-2017], on facts, it is held that there was a collusion between the Financial Creditor and the Corporate Debtor. In those facts, the said application was dismissed. In that case, the certificates issued by the Auditors were not tallying with the accounts of the company. The said decision is not applicable to the facts of this case. 23. Learned counsel for the respondent also relied upon a decision rendered by the National Company Law Tribunal, Mumbai Bench, in International Road Dynamics South Asia (P.) Ltd. [CP 40/I&BP/NCLT/MAH/2017]. In that case, in paragraph 16, it is held by the Honourable Mumbai Bench of NCLT that unless the company is unable to pay or refused to pay, the process of insolvency cannot be resorted to. But, in view of the judgment of NCALT in Innovative Industries Ltd.(supra) the judgment of Mumbai Bench of NCLT cannot be made applicable in favour of the respondent Corporate Debtor. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 (54 of 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. (i) However, there shall not be termination, suspension or interruption in respect of supply of essential goods or services to Corporate Debtor during Moratorium period under section 14(2) of Code. (ii) The order of moratorium is not applicable to the transactions that may be notified by the Central Government in consultation with any financial sector regulator. (iii) The order of moratorium comes into force from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
