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TMI Blog2018 (8) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Insolvency Resolution Process has been prayed for, was incorporated on 13.11.1987 having its registered office at 9009, D.B. Gupta Road, Pahar Ganj, New delhi-110055. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of section 60 of the Code. 3. It is appropriate to mention that the applicant M/s Asset and Reconstruction Company (India) Limited is a company incorporated on 11.02.2002 under the Companies Act, 1956 and was assigned identification number U65999MH2002PLC134884. The applicant company was registered as a Securitisation and Reconstruction Company under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Act, 2002 (SARFAESI Act), assignee of Indian Overseas Bank, having its registered office at The Ruby, 10th floor, 29, Senapati Bapat Marg, Dadar (West) Mumbai-400028. 4. Mr. Amit Kumar Gupta, Chief Manager of the applicant company was du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid facilities extended by IOB to the Corporate debtor was duly assigned to the applicant financial creditor (ARCIL) vide assignment agreement dated 17.04.2015. A copy of the assignment agreement dated 17.04.2015 has been placed on record. 9. The description of individual facilities disbursed from time to time and the amount outstanding there under are described in the application as below: (a) Working capital facility. * Pursuant to working capital consortium agreement dated 18.10.2008 and 10.08.2010 entered into between the corporate debtor, and consortium of IOB and Punjab National Bank (PNB). The existing facility were extended to corporate debtor and were renewed and under working capital facility a principal amount of Rs. 31,49,95,065/- stands due and payable by corporate debtor. (b) Term loan facility. * Under term loan agreement dated 09.10.2006 (Term Loan-I agreement) Rs. 1.50 Crores were sanctioned and Rs. 75,67,681/- is outstanding in the said account due and payable by the corporate debtor. * Under term loan agreement dated 19.01.2006 (Term Loan-II agreement) Rs. 5 Crores were sanctioned and Rs. 1,30,81,970/-is outstanding in the said account due and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in support of claim of creation of charges to secure the debt. 13. In addition copy of Balance sheet and Financial statements for the financial year 2015-2016 of the corporate debtor have been filed with the application. Moreover the relevant statement of accounts as per Banker's Book duly certified in accordance with the Bankers Books Evidence Act, 1891 have been placed on record. That apart balance confirmation letter acknowledging the debt and also corporate debtor's letter dated 12.02.2013 to IOB offering one-time settlement of the dues have also been relied upon and have been placed on record in support of the claim of default. 14. 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. 15. The Respondent Corporate Debtor has filed its reply on 22.02.2018. It is submitted that the respondent is a running unit with approximately 200 workers and therefore the application is a gross abuse of the process of law and is not sustainable under the provisions of the Code. Even if the respondent company is a going concern having 200 workers, Corporate I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code liberty was given to the petitioner to file fresh one on the same cause of action by furnishing detailed particulars complete in all respects. Pursuant to such leave the applicant 'financial creditor' has filed the present application on the same cause of action by placing on record voluminous and overwhelming evidence in support of the claim as well as to prove the default. 19. The material on record clearly goes to show that respondent had availed the loan facilities and has committed default in repayment of the loan amount. An application under section 7 of the Code is acceptable so long as the debt is proved to be due and there has been occurrence of existence of default. What is material is that the default is at least 1 lakh. In view of section 4 of the Code, the moment default is of Rupees one lakh or more, the application to trigger Corporate Insolvency Resolution Process under the Code is maintainable. 20. The respondent has disputed the alleged date of NPA on the ground that the declaration of the accounts of the Respondent Company as "Non-Performing Asset" by Indian Overseas Bank is itself a subject matter of challenge before the Ld. Debt Recovery Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the applicant financial creditor has to be admitted on satisfaction that: 1. Default has occurred. 2. Application is complete, and 3. No disciplinary proceeding against the proposed IRP is pending. 24. Hon'ble Supreme Court in the case of Private Limited V. Kinzsa Software Private Limited reported in AIR 2017 SC 4532 at Para 19 has observed that: "Once the adjudicating authority/Tribunal is satisfied as to the existence of the default and has ensured that the application is complete and no disciplinary proceedings are pending against the proposed resolution professional, it shall admit the application. The adjudicating authority/Tribunal is not required to look into any other criteria for admission of the application." 25. In the case in hand the respondent company has committed default in repayment of the outstanding amount. Moreover, the application of the financial creditor is complete and there is no disciplinary proceeding pending against the proposed IRP. We are satisfied 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 Debtor'. In case there is any violation, the Interim Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional shall be under duty to protect and preserve the value of the property of the 'Corporate Debtor' as a part of its obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code, Rules and Regulations. 32. The office is directed to communicate a copy of the order to the Financial Creditor, Corporate Debtor and the Interim Res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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