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TMI Blog2018 (9) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... ng its registered office at 121, First Floor, Vardhman Market, Outer Ring Road, Vikas Puri, New Delhi - 110018. 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 Andhra Bank is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act 1980 (No. 40 of 1980) having Head Office at 5-9-11, Dr. Pattabhi Bhavan, Saifabad, Hyderabad - 500 004 with its specialized asset recovery management branch at 1st Floor, Andhra Bank Building, Sultan Bazar, Koti, Hyderabad - 500095. 4. Mr. G. Nagesh, Asstt. General Manager of the applicant Bank and the principal officer of the applicant bank branch has relied upon the Power of Attorney dated 28.12.2017 of the applicant bank wherein he was appointed as true and lawful attorney of the applicant bank to do and transact the matters mentioned therein for and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, it was directed on 12.06.2018 to proceed ex parte against the respondent company. 8. The matter was finally heard on 07.08.2018 in the absence of the respondent and the application was reserved for orders. 9. It is the case of the applicant that on the request of the respondent company, the Applicant Bank had sanctioned OCC limit of Rs. 2.50 crores and ILC limit of Rs. 2.50 crores vide sanction letter dated 26.08.2009 subject to the terms and conditions mentioned therein. 10. It is submitted that the Respondent accepted the said terms and conditions stipulated in the sanction letter and in token thereof acknowledged the said letter. Moreover the Board of Directors of the respondent company vide resolution dated 27.08.2009 resolved to borrow OCC limit of Rs. 2.50 crores and ILC limit of Rs. 2.50 crores from the Applicant Bank. 11. In order to support the loan facilities the following loan documents were executed on 03.09.2009:- "(i) Composite agreement executed by the Respondent for Rs. 5.00 crores promising to repay the working capital limits within one year. The Respondent also agreed to pay overdue interest @ 2% in case of default in repayment of the amount on the due d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking letter executed by Respondent (iv) Consent letter to disclose to CIBIL executed by Respondent in case of its default in repayment of the loan amount." 15. It is submitted that with an intention to keep as security for due repayment of the liability, the respondent company offered vide letter dated 05.03.2010 by depositing on 05.03.2010 with the applicant bank the registered sale deed No. 1528/2008 and 2160/1996, registered lease-cum-sale agreement No.45/1988, Regd. Release of Mortgage deed No. 1389/2010 and other connected documents in respect of property and created mortgage over the said property. The Respondent vide letter dated 06.03.2011 confirmed the creation of the mortgage and the same was registered in Sub-Registrar Office, Hindupur on 06.03.2010 as document No. 1397/2010. 16. It is submitted that the Andhra Pradesh State Financial Corporation (APSFC) vide letters dated 21.07.2010, 13.10.2010, 23.11.2010 allowed 2nd charge in favour of the Applicant Bank on properties mortgaged to them by the Respondent. It is also submitted that the APSFC vide letter dt. 13.10.2010 conceded 2nd charge in favour of the Applicant Bank on the properties mortgaged to them by M/s Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uested the Applicant Bank to restructure the Term Loan and sanction of Funded Interest Term Loan of Rs. 1.75 crores towards the irregular portion in the Term Loan and postponement of the second instalment in Term Loan and the Applicant Bank vide sanction letter dated 16.09.2011 sanctioned the FITL loan of Rs. 1.75 crores and postponed the payment of second instalment. 24. It is submitted that the Board of Directors of Respondent vide resolution dated 19.09.2011 resolved to borrow Fund Based limit of Rs. 38.75 crores from the Applicant Bank. 25. It is submitted that the following loan documents were again executed on 27.09.2011. i. Funded Interest Term Loan & Amendatory Agreement executed by Respondent for FITL of Rs. 1.75 crores agreeing to repay the same in 24 monthly instalments of Rs. 7,30,000/- per month commencing from 01.10.2012 with interest @16.25% with monthly rests. ii. Supplemental and Amendatory (for reschedulement of the loan) executed by Respondent for re-schedulement of Term Loan of Rs. 10.80 crores promising to repay the same in 22 with interest commencing from 30.10.2012. quarterly instalments @ Rs. 49,10,000/- per quarter. 26. It is submitted that out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed a letter to the Head Office of the Applicant's Bank and local police officials, as if, the Applicant Bank's officials have break open the locks of the factory and shifted the hypothecated assets. 30. It is also the case of the applicant that the said premises was under the custody and watch and ward of the security personnel of Respondent and the outsiders are not allowed inside without permission of security. It is alleged that the Respondent and its Directors have already removed major part of hypothecated assets from the factory premises. 31. It has been emphasized that the Respondent company availed the loan facilities and committed default in repayment of the dues to the Applicant Bank. The Applicant Bank opened accounts and the same were operated by Respondent regularly from time to time. Certified copies of statement of account relating to the said limits availed by the Respondent from time to time, duly certified as per the provisions of Bankers' Book Evidence Act, has been placed on record. It is submitted that as per the agreement/ covenants entered into with the Applicant Bank by the Respondent, the Applicant Bank is entitled to capitalize the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial creditor (b) Operational creditor, and (c) Corporate debtor itself. 35. The procedure in relation to the Initiation of Corporate Insolvency Resolution Process by the "Financial Creditor" is delineated under Section 7 of the Code, wherein "Financial Creditor"/"Financial Creditors" can file an application. As per Section 7(1) of the Code an application could be maintained by a Financial Creditor either by itself or jointly with other Financial Creditors. 36. The expressions "Financial Creditor" and "Financial debt" have been defined in Sections 5(7) and 5(8) of the Code. Precisely "Financial debt" is a debt along with interest, if any, which is disbursed against the consideration for time value of money. In the present case applicant bank had sanctioned and disbursed various loan amounts recoverable with applicable interest by entering into various loan agreements with the corporate debtor. The corporate debtor had borrowed the credit facilities against payment of interest as agreed between the parties. The loan was disbursed against the consideration of time value of money with a clear commercial effect of borrowing. Needless to say, that the debt/claim in question i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d non-refund of the outstanding dues, the account of the corporate debtor was declared NPA. The applicant bank has also placed CRILC report in order to show that accounts of corporate debtor was reported as loss and doubtful account. It has been shown that the company has defaulted in repayment of the loan to the applicant and that huge debts are outstanding as reflected in the statement of accounts of the company. 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. 41. The material placed on record clearly goes to show that respondent corporate debtor has 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. 42. It is thus seen that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor as may be specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14 (3)(b) of the Code. 48. 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 Debtor'. In case there is any violation, the Interim Resolution Professional would be at liberty to make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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