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TMI Blog2018 (2) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... no bar created by the Insolvency and Bankruptcy Code to proceed with adjudication of such petition merely because some process is pending at the Joint Lender Forum Another objection in respect of choice of the Interim Resolution Professional in view of the replacement of the Interim Resolution Professional the argument advanced by Mr. Chaudhary, learned Senior counsel would also not require any further consideration and we accept the appointment of Mr. Navneet Kumar Gupta to act as Interim Resolution Professional. As a sequel to the above discussion, this petition is admitted and Mr. Navneet Kumar Gupta, 520, 5th Floor, Caddie Commercial Tower, Aerocity, New Delhi-110037 is appointed as an Interim Resolution Professional. X X X X Extracts X X X X X X X X Extracts X X X X ..... en in Annexure-5 are as under: - "DETAILS OF DISBURSEMENT ORIGINAL LOAN AGREEMENT Account No. -31523043712 Date of Disbursement Amount of Disbursement (Rs.) 02.12.2010 20,00,00,000 29.03.2011 65,00,00,000 09.06.2012 90,00,00,000 17.08.2012 115,00,00,000 26.06.2015 6,00,00,000 29.10.2016 4,00,00,000 Total 300,00,00,000 COST OVERRUN-I Account No. 33830168771 Date of Disbursement Amount of Disbursement (Rs.) 10.5.2014 9,54,00,000 30.06.2014 23,43,00,000 29.08.2014 3,55,78,076 03.09.2014 3,59,47,760 01.10.2014 3,52,75,408 30.12.2014 7,28,22,853 01.01.2015 3,84,86,025 14.02.2015 3,83,71,524 30.03.2015 3,42,58,380 30.05.2015 3,81,33,992 25.06.2015 6,20,00,000 Total 72,05,74,018 COST OVERRUN-II Account No. 35110520027 Date of Disbursement Amount of Disbursement (Rs.) 29.07.2015 19,42,00,000 30.09.2015 6,61,00,000 Total 26,03,00,000 Total Amount Disbursed = Rs, 398,08,74,018/- (Rupees Three Hundred Ninety Eight Crore Eight Lakhs Seventy Four Thousand and Eighteen Only)" 5. A perusal of the aforesaid details of disbursement would show that the Financial Creditor, through multiple financial facilities and loan agreements, ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2016 15.06.2016 219,88,00,000/- 3. Pledge over 35419800 shares of the Corporate Debtor constituting 26% of the issued and paid up capital of the Corporate Debtor, comprised of; i. 17709900 shares of the Corporate Debtor held by Mr. B.B. Singal ii. 17709900 shares of the Corporate Debtor held by Mr. Neeraj Singal 02.06.2016 Not Applicable 35,41,98,000/- 4. Pledge over 8770000 shares of the Corporate Debtor pledged by Bhushan Consumer Electronics Private Limited 18.03.2009, 27.05.2011 and 15.11.2011 Not Applicable 8,77,00,000/-" 8. The Financial Creditor also placed on record a list of all the financial facilities granted by the Financial Creditor to the Corporate Debtor along with the complete copies of the Financial Contracts reflecting all amendments and waivers to date. Copies of the said documents have been placed on record as Annexure-8 (Colly). 9. The 'financial creditor' has placed on record an overwhelming evidence to prove the default. A record of default is also with the Commercial Credit Information Report of the 'Corporate Debtor' issued by the TransUnion CIBIL (Annexure-9). Likewise, Entries in Bankers Book in accordance with the Bankers Books Evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, has been placed on record (Annexure-12). 12. There are various documents placed on record establishing authority to file the application which include authorization dated 16.06.2017 issued by the Chairman of the State Bank of India. It clearly states that in pursuance of powers conferred under Section 27 of the Bank of India Act, 1955 the Chairman authorize all the officers on whom signing powers have been conferred vide the gazette Notification dated 27.03.1987 to sign applications, reply, affidavit, counter affidavit, sur rejoinder and generally all pleadings and file applications for initiation of Corporate Insolvency Resolution Process before the National Company Law Tribunal, under the provisions of IBC on behalf of the Bank or in connection with any proceedings before Tribunal for or against the Bank under IBC. A reference has then been made to Regulations 76 & 77 of the State Bank of India (General Regulations, 1955). Regulation 77 with regard to signing the pleadings clearly stipulates that plaints, written statements, petitions and applications may be signed and verified, affidavits may be sworn or affirmed, bonds may be signed, sealed and delivered, and generally all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have further authorised any officer. Therefore, the petition is not maintainable and is thus liable to be dismissed. 14. In response to the aforesaid objection Ms. Pallivi Shroff learned counsel for the Financial Creditor -petitioner has argued that Section 27 of the State Bank of India Act is couched in the widest amplitude and it clothes the chairperson to exercise all such powers and to do all such acts and things as may be exercised or done by State Bank itself. According to learned counsel Regulation 77 of the State Bank of India (General) Regulation, 1955 further confer general powers on the Chairperson or by any officer or employee empowered by or under Regulation, 76 to sign documents for and on behalf of the State Bank. A reference has been made to Regulation 76 to contend that Managing Directors, Deputy Managing Directors, Chief General Managers and such other officers and employees of the State Bank as the Central Board may authorise in this behalf by notification in the Gazette of India have been severally empowered for and on behalf of the State Bank to sign all documents, instruments, accounts, receipts, letters and advices connected with the current or au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer in any case is discernible from Section 27 of the State Bank of India Act. It gives Chairperson power to do all such acts which are to be done by the Bank itself subject to directions by the Board. No contrary direction by the Board has been pointed out nor there is any. We find that authorisation is in order. Therefore, we have no hesitation to reject the aforesaid submission made on behalf of the respondent-Corporate Debtor. 17. Another objection raised by Mr. Chaudhary is that in the Insolvency Process default is a triggering point and therefore the amount must become due and payable. In that regard our attention has been drawn to the definition of expression 'default' under section 3(12) of the Code. Referring to the directions issued by the Reserve Bank of India in its letter dated 13.6.2017 (page -25) it is submitted that debt is not due as period of six months stated in the letter sent by Reserve Bank of India to Financial Creditor-petitioner had not expired. According to the learned counsel the amount has not become due and payable. Mr. Chaudhary has referred to the minutes of meeting of the Joint Lender Forum dated 1.9.2017 (page 120) and 7.9.2017 (Page 127) to argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f resolution plans. It brings to fore the various shades of interplay of market forces. Therefore, it is not possible to accept the aforesaid argument that the petition is in any way premature. Even otherwise there is no bar created by the Insolvency and Bankruptcy Code to proceed with adjudication of such petition merely because some process is pending at the Joint Lender Forum. Learned counsel for the petitioner has rightly placed reliance on the observation made by Hon'ble High of Gujarat in Essar Steel India Ltd. (supra). The Hon'ble High of Gujarat while considering the validity of directives issued by the Reserve Bank of India to the Banking Companies by invoking the provisions of Section 35AA of Banking Regulation Act has held that the directives issued by the Reserve Bank of India were not binding upon SCB and they were not bound to consider the restructuring proposal by the petitioner. It went on to hold that merely because SCB has corresponded to SBI for its proposal with reference to JLF activities, it cannot be ruled that SCB could not have initiated insolvency proceedings. Therefore, we do not find any substance in the argument raised on behalf of the respondent and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, this petition is admitted and Mr. Navneet Kumar Gupta, 520, 5th Floor, Caddie Commercial Tower, Aerocity, New Delhi-110037 is appointed as an Interim Resolution Professional. 24. In pursuance of Section 13(2) of IBC we direct that public announcement shall be immediately made by the Interim Resolution Professional with regard to admission of this application under Section 7 of IBC. We also declare moratorium in terms of Section 14 of IBC. The consequences of imposing the moratorium flows from the provisions of Section 14(1)(a), (b), (c) & (d) and 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 Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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