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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 ..... tanding financial debt from the corporate debtor and that there has been a default in payment of the financial debt. As a sequel to the above discussion and in terms of Section 7(5)(a) of the Code, the present application is admitted. - (IB)-284 (PB)/2018 - - - Dated:- 20-7-2018 - MR. M.M. KUMAR, PRESIDENT For The Financial Creditor : Mr. Saurabh Jain, Advocate For The Respondent : Mr. Ashutosh Gupta, Adv And Mr. Gaurav Rana, Advocate ORDER S. K. Mohapatra, Member 1. Oriental Bank of Commerce claiming 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 prayer to trigger the Corporate Insolvency Resolution Process in respect of respondent company M/s. JSD Steel Private Limited, referred to as the corporate debtor. 2. The Respondent Company M/s. JSD Steel Private Limited (CIN U27310DL2005PTC142402) against whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 09.11.2005 ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e satisfies the requirement of Section 7(3)(b) of the Code for his appointment as an IRP. 6. It is the case of the applicant bank that the Corporate Debtor approached Oriental Bank of Commerce, a member of a consortium of lenders, who together under multiple banking, sanctioned various credit faculties to the Corporate Debtor. Oriental Bank of Commerce, out of the said consortium sanctioned the financial facilities cash credit limit of ₹ 11 Crore and letter credit limit of ₹ 13 Crore on 29.10.2011. Subsequently, the said loan accounts were restructured vide sanction letter dated 27.09.2012 in terms of cash credit limit of ₹ 10.50 Crore, Letter of Credit for ₹ 2.50 Crore, working capital term loan ₹ 11 Crore and FITL ₹ 1.47 crore totalling to ₹ 25.47 Crore. 7. It is pertinent to mention here that the aforesaid facilities were granted by the applicant bank in addition to various facilities granted by the consortium banks i.e. Union Bank of India and ICICI Bank. 8. It is stated in the application that as on 31.01.2018 the total outstanding amount comes to ₹ 48,58,98,930/- which includes principal amount of ₹ 21,71,02,389/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IBIL report. 12. 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. The detailed outflow and disbursements made from the accounts pertaining to respective loan facilities are reflected in the relevant account statement. 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 and securities were created and balance confirmation was signed. Respondent company utilised and enjoyed the loan facility and due to non-payment and non-refund of the outstanding dues, the account of the corporate debtor was declared NPA. The applicant bank has also placed CRILC report and CIBIL report in order to show that accounts of corporate debtor was reported as loss account. 13. It is thus seen that the applicant financial creditor has placed on record voluminous and overwhelming evidence in support of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent after carefully examining the terms and conditions of loan had mutually entered with the loan agreement with applicant bank. There is nothing on record to show as to why the express terms of commercial loan agreements, Suo moto executed, are not binding on the parties. 17. It is the further case of respondent that the present application is not maintainable because the amount claimed by financial creditor is unconscionable and the major portion of the amount claimed is due to interest and other charges. Additionally dispute has been raised on the quantum of claim and on interest charged along with the contention that there has been variance in the claims of the applicant bank. 18. In this regard it is seen that the variance in the amount of default is mainly on account of difference of dates. Be that as it may the corporate debtor would be entitled to raise objection of any mismatching of dues before the IRP/committee of creditors. In the present proceeding the Tribunal is not supposed to ascertain the quantum of amount of default or to pass a decree as to how much is actually due to the applicant financial creditor. The Code requires the adjudicating authority to onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 7 of the Code in order to recover its dues and the inter se agreement between financial creditors cannot override the said provision of the Code nor can take away the right of the applicant to file application under Section 7 of the Code. 21. The respondent further submitted that there was delay in implementation of the restructuring Scheme and the applicant bank only released ₹ 10.50 Crores to the respondent company in place of agreed and assured limit of ₹ 14.50 Crores. It is stated that the applicant bank did not fulfil its obligation under consortium restructuring plan. It is stated in the reply that the respondent had suffered huge losses due to non-release of consortium funds in time. It is submitted that the declaration of NPA is under challenged before DRT. It is thus contended that there is no default committed by respondent corporate debtor. 22. In this regard the applicant in its rejoinder has submitted that the loan account of respondent was restructured by applicant. However, since the respondent had failed to repay the loan amount as per the norms and terms of loan agreement, the account of respondent company was declared NPA. In rejoinder filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the proposed IRP is pending. 25. In the case in hand there is no dispute that 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 in payment of the financial debt. 26. As a sequel to the above discussion and in terms of Section 7(5)(a) of the Code, the present application is admitted. 27. Shri Krishan Gopal Somani, registration number IBBI/IPA-0001/IP-P00300/2017-18/10544, having address, J3/15, 4th floor, Asaf Ali Road, new delhi-110002 with email id [email protected] is appointed as an Interim Resolution Professional. 28. 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. 29. We als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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