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TMI Blog2018 (10) TMI 1580X X X X Extracts X X X X X X X X Extracts X X X X ..... of Attorney of the financial creditor in favour of Shri Himanshu Kansal is at Annexure A-1 of the petition. 2. The CIN of the corporate debtor is U24117CH1996PLC018656, date of incorporation is 21.08.1996 and registered address is at SCO 85, Sector 35-C, Chandigarh-160036 as per master data at Annexure A-29 of Diary No. 1116 dated 13.04.2018. The matter, therefore, lies within the territorial jurisdiction of this bench of the Tribunal. 3. It is stated that the corporate debtor had availed loan/credit facilities/financial assistance from the financial creditor and that as per account reviewed lastly on 29.03.2014 vide letter reference No. HO/ADV/852/2013- 14/4202 dated 29.03.2014 (placed at Annexure A-7 of the petition), the total amount of debt granted was as follows:- "1. Term Loan WCTL (Woking Capital Term Loan) of Rs.23,61,00,000/-. 2. Term Loan of Rs. 19,03,00,000/-. 3. Term Loan-FITL (Funded Interest Term Loan) of Rs. 10,60,00,000/-. 4. Cash Credit Working Capital Limit of Rs. 7,63,00,000/- Letter of credit of Rs.4,61,00,000/-. Rs. 60,87,00,000/- funded plus Rs. 4,61,00,000/- Non-funded total Rs. 65,48,00,000/- (Sixty five crore forty eight lakhs only)." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The copy of the demand notice issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), dated 21.07.2016, copy of objections received from the corporate debtor under Section 13(3-A) of the SARFAESI Act dated 24.09.2016; copy of reply to the objections dated 24.09.2016 vide letter dated 14.10.2016; copy of demand notice dated 12.09.2017 are stated to be enclosed as Annexures A-24 to A-28 of the petition. The copy of the petition is stated to be sent to the corporate debtor by speed post on 08.12.2017. 7. In the order dated 10.01.2018, it was observed that the learned counsel for the petitioner has handed over the tracking reports in respect of delivery of copy of the application with the entire paper book to the respondent at six different addresses including the registered office of the corporate debtor and further stated that all the postal articles were delivered as per the tracking reports. 8. Notice of the petition was issued to the respondent-corporate debtor to show cause as to why the petitioner be not admitted. The affidavit of service was filed by Diary No. 283 dated 24.01.2018. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also the copy of working for computation of amount and days of default in tabular form as annexures A-34 to A-37 along with bankers certificates. 11. The replication /rejoinder of the financial creditor was filed by Diary No. 1349 dated 01.05.2018 denying the contentions raised in the reply by the corporate debtor and stating that as regards para-8 of the reply of the corporate debtor, no claim has been submitted by the corporate debtor, and it is an admitted fact that there is amount due as well as default towards the financial creditor. 12. It is inter alia observed in the order dated 16.05.2018 that the respondent sought adjournment to file counter for the documents filed by the petitioner in compliance with the previous order. It was observed in the order dated 29.05.2018 that counter to the documents has not been filed by the respondent. 13. During the course of hearing, the learned counsel for the financial creditor argued that Form No. 1 with required particulars is duly filed, amount is due, default has occurred and, therefore, the petition may be admitted. It was argued by the learned counsel for the corporate debtor that the certificate of registration of charge is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch notice from the Adjudicating Authority. Therefore, three issues arise for consideration are :- (i) Whether a default has occurred. (ii) Whether the application under Section 7(2) is complete and (iii) Whether any disciplinary proceedings are pending against Resolution Professional. 16. As regards the first issue i.e. the occurrence of default, we have already discussed above that consequent to review/restructuring under CDR, financial facilities in the form of loan/cash credit/letter of credit totalling to Rs. 65,48,00,000 (Rs.60,87,00,000 funded plus Rs. 4,61,00,000 non- funded) were granted to the corporate debtor and that the amount outstanding as on 31.10.2017 was Rs. 83,10,72,467.80 inclusive of interest and expenses of Rs. 12,00,000 (also refer Part IV of Form 1) i.e. more than the financial facilities granted. The working for computation of amount and days of default in tabular form has been submitted by the financial creditor vide Annexures A-34 to A- 37 of Diary No. 1116 dated 13.04.2018 (supra). Certificate in terms of Para 2A(b) of Bankers Books Evidence Act has been furnished for the loan/cash credit accounts being maintained. Notice under Section 13(2) read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of 12.09.2017 and also future interest thereon along with cost charge and expense within 15 days from the notice failing which the financial creditor, in addition to initiating recovery process under prevailing laws, shall be constrained to exercise all or any of the rights conferred under the Code. The notice of demand is not required to be statutorily issued in respect of initiation of CIRP in the case of financial creditors. However, the contents of the notice clearly bring out the occurrence of default. The occurrence of default is also supported by the issue of notice under Section 13(2) read with Section 13(13) of SARFAESI Act, 2002 (supra). 18. The second issue is whether the application under Section 7(2) is complete. As noted in the order dated 09.04.2018, during the course of arguments, the learned counsel for the corporate debtor had pointed out certain defects in the application in Form 1 which are:- (i) that there is no certificate of registration of the charge issued by the Registrar of Companies concerned and (ii) that with the petition the working of the computation of amount and days of default in a tabular form as required by Col. 2 of Part 2 of Form 1 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove that the detail of date of default is available in the Notice under Section 13(2) of the SARFAESI Act, 2002 dated 21.07.2016 enclosed as Annexure A- 25 of the petition. 21. In the reply/objections filed vide Diary No. 645 dated 05.03.2018, it is inter alia submitted that the financial creditor has failed to provide the record of the default with the information utility as required under Section 7 of the Code. Para-3 of Part V of Form 1 requires furnishing of details of record of default with the information utility, if any. It is stated by the financial creditor in Form 1 that the para is not applicable. Further, Section 7(4) requires the Adjudicating Authority to ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under Section 7(3) of the Code. Therefore, no record being available with the information utility, cannot result in making the application under Section 7(2) as incomplete. 22. In view of the above discussion we hold that the application filed by the financial creditor in Form 1 is complete. 23. We may point out here that in the reply/objections (Diary No. 645 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess for Corporate Persons ) Regulations, 2016. In Form No. 2, Shri Hemanshu Jetley has also certified that there are no disciplinary proceedings pending against him with the Board or Indian Institute of Insolvency Professional of ICAI. 26. In view of the above discussion, the requirements of Section 7(5)(a) are satisfied in the present case and, therefore, the petition is admitted and the moratorium is declared in terms of sub-section (1) of Section 14 of the Code, which is as under:- (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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct' governing his profession and as an Insolvency Professional with high standards of ethics and moral; (iv) The Interim Resolution Professional shall endeavour to constitute the Committee of Creditors after collation of all the claims received against the corporate debtor and the determination of the financial position of the corporate debtor, constitute a committee of creditors and shall file a report, certifying constitution of the committee to this Tribunal on or before the expiry of thirty days from the date of his appointment, and shall hold first meeting of the committee within seven days of filing the report of constitution of the committee. (v) It is hereby directed that the 'Corporate Debtor', its Directors, personnel and the persons associated with the management shall extend all cooperation to the Interim Resolution Professional in managing the affairs of the 'Corporate Debtor' as a going concern and extend all co-operation in accessing books and records as well as assets of the 'Corporate Debtor'; (vi) The Interim Resolution Professional shall cause a public announcement within three days as contemplated under Regulation 6 of the Insolvency and Bankruptcy Board ..... X X X X Extracts X X X X X X X X Extracts X X X X
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