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TMI Blog2018 (5) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... , Senapati Bapat Marg, Elphinstone Road (West), Mumbai - 400 013, email: [email protected], Registration No. IBBI/IPA-001/IP-P00261/2017-18/10490 in Part-II of Form No.6 and the said IRP has given his consent in Form No.2, placed on record. The Petition is hereby “Admitted”. - CP(IB) NO. 300/MB/2018 - - - Dated:- 19-3-2018 - MR. M. K. SHRAWAT, J. For The Petitioner : Janak Dwarkadas, Sr. Adv., Zal Andhyarujina, Adv., Varghese Thomas, Aditya Rathi and Yahaan Limathwalla For The Respondent : Ashish Kamat and Ms. Raki Lodha, Advocates. ORDER Per M. K. Shrawat, Member (Judicial). 1. This is an Application filed by a Corporate Applicant to initiate Corporate Insolvency Resolution Process (CIRP) by invoking the provisions of Section 10 of I B Code, 2016 (read with Rule 7 of I B (Application to Adjudicating Authority) Rules, 2016 on 28-02-2018. Requisite Form No.6 is submitted according to which under Part-I and under the head PARTICULARS OF THE CORPORATE APPLICANT the Corporate Debtor is Aircel Cellular Limited having Registered office at Opus Centre, 47, Central Road, Opposite Tunga Paradise, MIDC, Andheri (East), Mumbai, Maharashtra- 400093. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int Lenders Forum (JLF) as an institutional mechanism for resolution of stressed accounts also stands discontinued. All accounts, including such accounts where any of the schemes have been invoked but not yet implemented, shall be governed by the revised framework. Learned Senior Advocate has pleaded that the decision of RBI has a far reaching effect, directly affecting the NPA Accounts. One more point is conveyed by Learned Advocate that the Governing Body i.e. RBI has not only acknowledged the enactment of I B Code but also given due importance to the provisions of I B Code. As per the said communique the Applicant is left with the option to initiate the proceedings under the Provisions of Insolvency Code. Instead the consortium of Bank could take the recourse of Insolvency proceedings the Debtor had opted to exercise the option, hence this Application is moved u/s 10 of The Code. 1.2 According to Learned Senior Advocate the conditions required to be fulfilled under section 10 for admissions of an Application are minimal that an Applicant is expected to explain the Debt and secondly to establish the Default . In this regard, an Order has been pronounced by Hon. NCLAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no option but to shut down the business, or the business may be suspended by operation of law. 1.4 An apprehension has also been raised by Learned Sr. Advocate that due to non-operation of Bank Account and non-payment of salary to staff the Telecom business of the Company shall suffer or DoPT may suspend the Licence. He has urged urgency to save the Company. 2. Noteworthy to refer that an Intervener has approached the Court at this juncture of Admission, seeking time to represent one of the Operational Creditor viz. GTL Infrastructure of M/s. Aircel Cellular Limited and to be allowed to become party to the litigation. Ld. Advocate Mr. Ashish Kamat representing the Intervener has informed that the Intervener viz. GTL Infrastructure Limited has filed a Petition against M/s. Aircel (O.M.P.(I)(COMM.) 40/2018 IA. 1214/2018) and vide an Order dated 29-01-2018 the Hon ble Delhi High Court has restrained the Company to dispose of any of its assets or creating any Third Party Interest. Our attention is drawn that the Hon ble Delhi High Court has further directed, quote It is clarified that the injunction is being passed against the Respondent taking further steps. unquote. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49,758,834 1,250,000 48,508,834 *Interest due amount includes interest accrued for 20 days of February (sic) 2018 which otherwise would become due and payable on February 28, 2018. 2.2 The Corporate Debtor had also availed several other Loan Facilities and one of such Loan Facility is Non-Fund Based Facility granted by State Bank of India and the outstanding Loan figures as on 20-02-2018 is described as Under:- NON Fund Based Facility Aircel Cellular Umited as on 20th February, 2018 Amount in Crore Secured Facilities* Sanctioned Amount (Air Group Facility) ACL Bank Guarantees State Bank of India 3000 46.23 Total 3000 46.23 2.3 The impugned Application submitted under section 10 of the I B Code also contains list of Operational Creditors . Volume PART-II contains a very long list of Operational Creditors running from pages 322 to 345 having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Stressed Assets as well as to reorganize the finances of a defaulted Company. For the purpose of reorganization and also for maximisation of value of assets due procedure is laid down in The Code and to achieve the said goal, the role of the NCLT is vital. Not only as an Adjudicating Authority but sometimes, NCLT is also functioning as a Supervisory Authority so that the provisions of This Code be successfully implemented. Specially when a Resolution Plan is submitted before NCLT to record its satisfaction. The suggestions, if any, made while recording satisfaction play a crucial role for re-establishment of a stressed Company for the years to come. In this regard, Eradi Committee report, Joint Committee Report of Lok Sabha, Parliamentary Debate etc. have also been perused. My decision underneath is based upon the thorough study of the said Reports and on due consideration of the stressed finances of this Corporate Debtor. 3.2 Before considering other aspects, at first it is worth to address the objection raised by an Intended Intervener. It is objected that the right to file this Application under section 10 of The Code has already been forfeited by the Hon ble Delhi Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting liberty to Bankers/SBI to take steps to exercise their rights as per law. Hence the Hon ble Court was also not objecting for taking due steps if it is in the benefit of restructuring of the finances. That objective can be achieved by filing section 10 Application. It is therefore not in contradiction of the Order of the Hon ble Delhi High Court, but toeing the same line. 3.3 I am also of the view that under the changed circumstances when the RBI has issued Guidelines dated 12-02-2018 (supra) withdrawing several Restructuring Schemes, presently the only remedy available to a Corporate Debtor is to approach NCLT. By this method as well, the ultimate motive is to restructure the stressed assets and to revive the revenue generation by inviting Resolution Plans. The procedure or the law may be different but the ultimate aim is the same. The aim is to protect the interest of all the stakeholders by reviving the finance of a Debtor Company. Because of this reason as well, I am of the opinion that the action taken by the Corporate Debtor is meaningful and to be supervised strictly. Appointment of Insolvency Resolution Professional and his conduct is also to be scrutinized with judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as Financial Borrowings to the tune of ₹ 665,64,50,687/-. 6. To conclude, considering the voluminous evidences annexed along with the Application and in the light of the provisions of Section 10 of The Code I hereby hold that the conditions as prescribed under section 10 of The Code have duly been fulfilled. Since this is a Petition of Corporate Debtor , therefore, the Insolvency Process shall commence as prescribed under Section 10 of IBC 2016. On one hand the existence of Financial Debt as well as Operational Debt is proved, on the other hand the occurrence of default is also established. The Corporate Debtor had failed to pay the amounts due and also failed to adhere to or comply with the other terms of Facility agreements. The Financial Debts have been classified as Non-Performing Asset in the books of the Financial Creditor. The Petition under consideration therefore deserves Admission . 7. The Corporate Debtor has intimated the name of the IRP Mr. Vijaykumar V. Iyer, Address: Deloitte Touche Tohmatsu India LLP, Indiabulls Finance Centre, Tower 2, 27th Floor, Senapati Bapat Marg, Elphinstone Road (West), Mumbai - 400 013, email: [email protected], Registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the compliance of the directions of this Order within 30 days to this Bench. A liberty is granted to intimate even at an early date, if need be. 10. The preliminary pronouncement made in the case of Aircel Limited (CP(IB)/298/MB/2018) on the date of hearing shall also be part of this Order and for ready reference reproduced below:- 1. The Applicant is admittedly a Corporate Debtor and in that capacity moved the impugned Application dated 28-02-2018 by invoking the provisions of Section 10 of Insolvency Bankruptcy Code, 2016. Stated therein that huge Loan Facilities were availed, however admittedly defaulted. In support, a list of the Financial Creditors comprising State Bank of India, J K Bank, etc., as well as Loan Agreements are annexed. Seeking Admission of the Application and consequent thereupon, commencement of Insolvency Proceedings against the Applicant itself. 2. One of the Operational Creditors viz. GTL Infrastructure Limited represented by Learned Counsel pleaded to join as an Intervener before admission of section 10 Application. Referred a decision of Hon ble Delhi High Court dated 29.01.2018 titled as GTL Infrastructure Limited v. AIRCEL Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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