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TMI Blog2018 (9) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... eel Private Limited. Subsequently, the name of the respondent company was changed into its present name M/s. JSD Steel Private Limited on 19.04.2017 having its registered office at 9 Rajdhani Enclave, Pitampura, North West, Delhi-110034. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal having territorial jurisdiction over the place 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 Oriental Bank of Commerce is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (No. 40 of 1980) having Head Office at E-Block, Harsha Bhawan, Connaught Place, New Delhi-110001, Corporate Office at Plot No. 5, Institutional Area, Sec-32, Gurugram, Haryana 122001, Branch Office at 1, 2, 3 M-Block, Connaught Place, New Delhi-110001 and recovery cluster at cluster monitoring office, resolution-recovery and law E-Block, Harsha Bhawan, 4th Floor, Connaught Place, New Delhi-110001. 4. Ms. Poonam Kanwar, Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that in order to secure the Financial Facilities, the Respondent Corporate Debtor through its authorised representative signed and executed various security and loaning documents like equitable mortgage, hypothecation including creation of charge on the fixed and current assets (present and future) of the Corporate Debtor as stated in detail in the application. In addition several personal guarantees as well as corporate guarantees were executed in favour of the applicant bank/financial creditor in order to secure the financial debt. 10. It is the case of applicant that the respondent Corporate Debtor failed to maintain financial discipline and was irregular in servicing the said debt. Consequently, the Financial Creditor declared the Account of the Corporate Debtor as NPA as on 31.03.2013 as per the extant guidelines of Reserve Bank of India and recalled the financial facilities granted to the Corporate Debtor. A recall letter/Demand Notice u/s. 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 dated 20.08.2013 was sent by the applicant to the respondent company to clear the pending dues within 60 days f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor has filed its reply on 09.04.2018. The respondent has raised objection that an advance copy of the application has not been served to the respondent as per Rule 4(3) of the Rules. In this regard proof of service of application despatched in the registered office of the respondent company has been attached at page 338 of the application. It is further seen from the order sheet that the respondent had appeared on the first hearing on 23.03.2018 and by accepting notice subsequently filed its reply and participated in the hearings of the case. Accordingly, the contention that no notice was served and that there is violation of rules of Natural Justice cannot sustain. 15. Another objection has been raised challenging the authority of Ms. Poonam kanwar to file the present application on behalf of the applicant bank. It is argued that in the absence of relevant resolution dated 16.12.2017, it is not clear as to how the General manager derives its power to sub-delegate the authority in favour of Ms. Poonam Kanwar to file the application. In support of the sub-delegation a certified copy of extract of resolution passed by the Board of Directors of the applicant Bank in the meeting hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication. What is material is that the default is at least 1 Lakh. Once the default is Rupees one Lakh or more the Code gets triggered in view of Section 4 of the Code. 19. It is also the case of respondent that one-time settlement/resolution plan had already been approved having 76% shares in writing and is already in place by consortium lenders but was obstructed by the applicant. In this regard applicant in its rejoinder has submitted that the said One Time Settlement (OTS) proposal amount was way less than the Principal amount borrowed by the respondent from applicant and the applicant cannot give away the public money to the respondent. It is further stated that acceptance of said OTS by any other bank does not mandate on the applicant to accept the same. In financial transactions, adjustments and compromise should be left to the parties to settle the matter in their best interest or exigencies of the business. However in the absence of any binding compromise agreement, it is beyond the powers of the adjudicating authority to compel a creditor to forgo part of its claim. 20. Respondent has also raised objection that the financial facilities to the respondent corporate debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of said financial facilities. The applicant further submitted that the interest has been levied by the applicant on loan amounts as per the given RBI Guidelines. Hence the interest and other charges levied on the loan amount is valid and legal. The applicant further emphasized that the respondent had failed to adhere to the terms and conditions of loan agreement and has not paid legitimate dues of the applicant bank causing loss of public money and there is clearly a default in repayment of financial debt. 23. 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. There is no dispute that the applicant bank has filed the relevant statement of accounts duly certified in accordance with Banker Books Evidence Act, 1891 as per requirement of Form 1 part V column 7 of the application. Certified copy of statement of account kept during the course of banking business basing on which the claim has been raised can be termed as sufficient evidence of financial debt. It is seen from the statement of account and loan documents that the loan was sanctioned, loan agreements were executed, charge a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)(a), (b), (c) & (d) of the Code. 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 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." 30. 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. In addition as p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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