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TMI Blog2018 (2) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... igation to join the lead Bank. A certificate of registration dated 14.09.2017 issued to Mr. Gian Chand Narang by the Insolvency and Bankruptcy Board of India has been placed on record vide aforesaid diary number.According to the declaration made, by Mr. Gian Chand Narang, no disciplinary proceedings are pending against him nor he is a related party to ‘Financial Debtor’ namely NCML Industries Limited nor he is an employee of the NCML Industries Limited. Accordingly, he satisfies the requirement of Section 7(3)(b) of the Code. Thus this petition is admitted - C.P. NO. IB-254 (PB) OF 2017 - - - Dated:- 7-11-2017 - MR. M.M. KUMAR AND MS. DEEPA KRISHAN, JJ. For The Financial Creditor : Mr. Jaswinder Singh, Advocate Alongwith Mr. Ashwani Arora, Chief Manager of Central Bank of India For The Respondent : Mr. Arvind Kumar And Ms. Heena George, Advocate JUDGMENT M.M. Kumar, President The Financial Creditor -Central Bank of India 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 NCML Industries Limited. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of ₹ 7 crores was granted. The details concerning dates of disbursement under the aforesaid facilities have been annexed (Annexure A-2). 5. As per the averments of the Financial Creditor , the principal amount in default under CC (Hypothecation) limit as on 25.07.2017 is claimed to be ₹ 9,93,34,797 (Rupees nine crores ninety three lacs thirty four thousand seven hundred and ninety seven). In addition, the default amount towards LC development as on 25.07.2017 is claimed to be ₹ 47,03,02,370 (Rupees forty seven crores three lacs two thousand three hundred seventy). A copy of computation of amount of default and date of default has been placed on record (Annexure A-3). 6. The financial creditor has placed on record an overwhelming evidence to prove the amount advanced and secured by Corporate guarantees. The details of the security held by, or created for the benefit of financial creditor - Central Bank of India have been given in Part V which are set out below:- CC (Hypothecation) facility granted by Central Bank of India, Mid Corporate Finance Branch, 3, Bahadur Shah Zafar Marg, New Delhi- 110002 First charge shared pari passu amongst the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foregoing; (ii) Stocks of raw materials, consumables, general stores, of whatsoever nature and wherever arising finished and semi-finished goods, goods in process and stores, which are now lying or stored in or which may become consumable hereafter from time to time during the continuance of this Deed by lying or stored in or brought into or be in or about the factories and godowns of the company or warehouses, wherever situated; (iii) Accounts receivable, operating cash flows, treasury income, deposits of the Company with third parties, and any other revenues or whatsoever nature and wherever arising, present and future 7. The Financial Creditor also placed on record the Personal Guarantees of the Corporate Debtor namely Mr. Mohan Lal Jain, Ms. Suman Jain, Ms. Kamla Jain and Ms. Sangeeta Jain. All of them executed deed of guarantee namely form of guarantee for advances credits generally dated 31.03.2014, inter alia, guaranteeing that in the event of default by the Corporate Debtor, they were to be liable to make the payment of the dues under the CC and LC limits granted by the Financial Creditor. A copy of deed of guarantee dated 31.03.2014 has been placed on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facility, depict the closure balance as on 25.07.2017 in respect of both two facilities (Annexure A-16). 13. 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) A copy of letter of interest variation dated 31.03.2014. (b) A copy of letter of waiver dated 31.03.2014. (c) A copy of letter of continuity dated 31.03.2014. (d) A copy of undertaking dated 31.03.2014. (e) A copy of consent letter by company dated 31.03.2014. (f) A copy of legal notice dated 23.01.2017 issued by SBI acting as a Consortium leader on behalf of other Consortium members incorporated the dues of the Financial Creditor. (g) A copy of reply dated 15.02.2017 issued on behalf of the Corporate Debtor. (h) A copy of demand notice dated 25.02.2017 issued by Financial Creditor to the Corporate Debtor and its Directors/ Guarantors demand a sum of ₹ 56,96,37,167/- (Rupees fifty six crores ninety six lacs thirty seven thousand one hundred sixty seven only) within 5 days failing which appropriate legal action will be taken against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed has been elaborately explained and for further details reference has been made to Annexure A-2 which shows that CC facility was given by disbursing ₹ 7 crores on 04.04.2017. Another facility described as LC4 A/cs account ₹ 50 crores was given and the amount was disbursed on 02.03.2015. Likewise, the amount of default has also been elaborately given along with the dates which can be ascertained by referring to Annexure A-3. Therefore, we do not find any substance in the objection raised by the Corporate Debtor. 15. Another objection raised by the Corporate Debtor is that the petition was not maintainable without joining the lead Bank. This objection would not detain us as Section 7 of the Code itself shows that a financial creditor either by itself or jointly with other financial creditor may file an application for initiating Corporate Insolvency Resolution Process against a Corporate Debtor when a default has occurred. Therefore, there is no obligation to join the lead Bank. The rational for the argument put forth by the Corporate Debtor is that Section 7 must be interpreted harmoniously with the Rules framed by the Reserve Bank of India under Banking Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 031. He has also made declaration and filed a written communication dated 17.10.2017 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 along with the aforesaid diary number. According to the declaration made, by Mr. Gian Chand Narang, no disciplinary proceedings are pending against him nor he is a related party to Financial Debtor namely NCML Industries Limited nor he is an employee of the NCML Industries Limited. Accordingly, he satisfies the requirement of Section 7(3)(b) of the Code. 17. For the reasons, aforementioned this petition is admitted. Shri Gian Chand Narang who is duly registered with Insolvency and Bankruptcy Board of India IBBI/IPA-002/IP-N00362/2017-18/11031 is hereby appointed as an Interim Resolution Professional. 18. In pursuance of Section 13(2) of the Code we direct that public announcement shall be made by the Interim Resolution Professional immediately (3 days as prescribed by Regulations) with regard to admission of this application under Section 7 of the Code. We also declare moratorium in terms of section 14 of the Code. The necessary consequences of imposing the moratorium flows from the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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