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TMI Blog2018 (6) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied that the present application is complete and the applicant financial creditor is entitled to claim its outstanding financial debt from the corporate debtor and that there has been a default in payment of the financial debt - in terms of Section 7 (5) (a) of the Code, the present application is admitted. - (IB)-54(PB)/2018 - - - Dated:- 13-4-2018 - MR. M.M. KUMAR AND MR. S.K. MOHAPATRA, JJ. For The Financial Creditor : Mr. K. Dutta, Mr. Abhirup Dasgupta, And Ms. Swati Sharma, Advocates For The Repondent : Mr. Neeraj Chaudhary, Advocate JUDGMENT S. K. Mohapatra, Member 1. M/s Alchemist Asset and Reconstruction Company Limited (AARCL) claimed to be the financial creditor has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) with a prayer to trigger the Corporate Insolvency Resolution Process in respect of M/s Jaipur Metals Electricals Limited, referred as the corporate debtor. 2. The Respondent Company M/s Jaipur Metals Electricals Limited (CIN U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement dated 23.03.1995 for a working capital loan of ₹ 200 lakhs. (iii) Loan agreement dated 21.03.1996 was also executed between IDBI and the corporate debtor for granting credit facility for an amount of ₹ 150/- lakhs. * Total amount of ₹ 824 lakhs was disbursed by IDBI to the respondent company on 23 March 1995 and on 21 March 1996 towards term loan and working capital facility. * The IDBI vide assignment agreement dated 11.10.2007 assigned its all secured loans sanctioned to the respondent company in favour of the applicant, AARCL. * In addition to loan of IDBI, State Bank of Bikaner and Jaipur (SBBJ) had also sanctioned various loan facilities to the respondent corporate debtor Vide sanction letter dated 11.11.1994 granting credit facility of ₹ 720 lakhs and non-fund based limits of ₹ 1090 lakhs, both totalling to ₹ 1810 lakhs. Subsequently the loan was renewed on 30.04.1996 totalling to ₹ 1870 lakhs. The working capital was disbursed from time to time during the operation of the account as per the sanction letter. * The SBBJ vide assignment deed dated 11.03.2016 registered on 29.03.2017 assigned its all secured loans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SBI), CBI and State Bank of Indore (now SBI) for recovery of their dues before Debts Recovery Tribunal, Jaipur. 12. The State Bank of Bikaner and Jaipur further issued a Demand Notice under Section 13(2) of the SARFAESI Act for ₹ 9696.24 lakhs as on 31.05.2013 to the respondent company with pendent lite and future interest. However, the said Loan of SBBJ was assigned to applicant, AARCL on 11.03.2016. The Authorized Officer of Petitioner Company then took symbolic possession of all the assets of Corporate Debtor on 04.05.2017 under SARFAESI Act on behalf of all the Financial Creditors of respondent company. 13. The applicant has placed on record the following documents in support of IDBI debt: * Copy of the Asset Credit Agreement dated 23.03.1995 executed between the Corporate Debtor and IDBI up to the maximum sum of ₹ 474 lakhs for purchase of assets from time to time under the Credit Scheme of IDBI. * Copy of loan agreement dated 23.03.1995 executed between the corporate Debtor and IDBI for an amount of ₹ 200 lakhs towards working Capital Facility. * Copy of the Deed of Hypothecation dated 23.03.1995 executed between the Corporate Debtor and IDBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Sanction letter dated 30.04.1996 issued by SBBJ to the Corporate Debtor renewing the sanctioned credit faculties (fund Based Limits totalling to ₹ 720 Lakhs and Non-Fund Based Limits totalling to ₹ 1050 lakhs. * Copy of Demand Promissory Note dated 14.06.1996 by the Corporate debtor in favour of SBBJ to pay a sum of ₹ 20.58 crores. * Copy of Hypothecation agreement dated 14.06.1996 for debts and Assets hypothecation by the Corporate Debtor. * Copy of the Agreement dated 14.06.1996 for Cash Credit Hypothecating goods by the Corporate Debtor. * Copy of assignment agreement dated 11.03.2016 executed on 29.03.2017 between SBBJ and AARCL assigning the debt in favour of AARCL. 15. In addition to above the applicant has placed on record copies of certificates of registration for modification of charge under Section 132 read with Section 135 of the Companies Act, 1956 issued by Registrar of Companies, Rajasthan modifying the charge created by IDBI in favour of M/s Dhir Dhir Asset Reconstruction and securitisation Company Ltd. (now AARCL). 16. In respect of SBI loan also copy of Form 8 and 13 filed by SBBJ dated 18.06.1996 has been placed on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the corporate debtor on 04.05.2017 under SARFAESI Act on behalf of all the financial creditors of the respondent corporate debtor. 20. It is thus seen that the applicant financial creditor has placed on record voluminous and overwhelming evidence in support of the claim as well as to prove the default committed by the respondent company. 21. The Respondent Corporate Debtor has filed its reply on 29 January 2018. It has been admitted that the company had taken various loans from IDBI and State Bank of Bikaner and Jaipur amongst other financial infusions. The fact of default in repayment of loan has not been denied. It has been admitted that the applicant is a secured creditor of the respondent company and that the applicant for itself and on behalf of other lenders had taken symbolic possession of the assets of the respondent company. Respondent company has not raised any specific objection in its reply against the present application. 22. The audited financial statement of the respondent company for the financial year ending 31 March 2013 clearly reveals that a total amount of ₹ 391,72,98,134/- is due and payable to all the financial creditors including IDBI and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide order dated 23-11-2017] has held as follows: It appears that some of the applications for winding up under the companies Act, 1956 are pending, but no order for winding up has been passed. In the circumstances, in the absence of actual initiation of winding up proceedings against the corporate debtor it is always open to financial creditor/operational creditor to file an application for Corporate Insolvency Resolution Process against the corporate debtor. 27. In view of the non-obstante clause of Section 238 of the later parliamentary enactment and in the light of aforesaid clear precedent of Hon ble NCLAT, it can be held that such prior admission stage of pendency of winding up proceeding against corporate debtor under the Companies Act, 1956 cannot come in the way of the Code. In the present case the applicant vide affidavit dated 01.03.2018 has affirmed that till date no order of liquidation or admission of winding up petition has been passed by Hon ble High Court of Rajasthan in the pending winding up petition and that no provisional liquidator or official liquidator has been appointed. In that view of the position there is no bar for initiation of Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 34. 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 not to be terminated or suspended or interrupted during the moratorium period. 35. The Interim Resolution Professional shall perform all his functions contemplated, inter alia, by Sections 15, 17, 18, 19, 20 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the day-to-day affairs of the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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