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TMI Blog2018 (11) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... NO. IB-904(PB)/2018 - - - Dated:- 8-10-2018 - MR M. M. KUMAR AND PRESIDENT MR S. K. MOHAPATRA, MEMBER (T) For The Petitioner : P.B.A. Srinivasan and Parth Tandon, Advocate For The Respondent : Ex-parte JUDGMENT M.M. KUMAR, PRESIDENT The Financial Creditor -State Bank of India has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) with a prayer to trigger the Corporate Insolvency Resolution Process in the matter of M/s. Surya Pharmaceutical Limited. It is appropriate to mention that the financial creditor is a Bank established by the State Bank of India Act, 1955. It has its Corporate office at Madame Cama Road, Mumbai-400021 and Branch Office at Stressed Assets Management Branch, Local Head Office, Madhya Marg, 17B, Sector 17A, Chandigarh-160017. 2. Mr. V.K. Karwal, Assistant General Manager posted at the Stressed Asset Management Branch of the Financial Creditor-Bank has been empowered to sign and submit the petition in terms of General Regulations No. 76 77 of State Bank of India General Regulations 1955 made by the Reserve Bank of India in exercise of the powers conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V of Form-1 prescribed under sub-rule (1) of Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 the total amount of debt granted by the Financial Creditor, being a lead Bank as well as other consortium banks namely Punjab National Bank, Punjab Sind Bank, Standard Chartered Bank, IDBI Bank, EXIM Bank, HSBC, Federal Bank to the Corporate Debtor towards Fund based and Non-Fund Based a sum of ₹ 430,06,00,000.00 (Four Hundred Thirty Crores Six Lacs). 6. In column 2 of part IV of the application the amount claimed to be in default and the date on which the default occurred, have been detailed. According to the averments made by the Financial Creditor-State Bank of India the aforesaid facilities availed by the Corporate Debtor are overdue and total amount in default as on 10.07.2018 is ₹ 1571,09,44,381.60 together with uncharged interest from 18.08.2012 to 10.07.2018. 7. The details of the securities held by, or created for the benefit of financial creditor - State Bank of India which fulfils the requirements of Section 77 of Companies Act, 2013 have been given in Part V of the application which are as under:- A. PRIMARY S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexed herewith and marked as ANNEXURE A-7(COLLY). 8. The Financial Creditor then placed on record a list of all the financial facilities/contracts granted by the Financial Creditor to the Corporate Debtor along with the copies of the said Financial facilities/contracts as well as other documents. Those documents are as under:- (a) A copy of Sanction Letter dated 06.05.2008 duly accepted by the Corporate Debtor is annexed herewith and marked as ANNEXURE A-8. (b) A copy of the Extracts of the Minutes of Meeting of the Board of Directors of the Corporate Debtor dated 10.05.2008 is annexed herewith and marked as ANNEXURE A-9. (c) A copy of the Link Letter dated 16.05.2008 executed by the Corporate Debtor is annexed herewith and marked as ANNEXURE A-10. (d) A copy of the Agreement of Loan For Overall Limit dated 16.05.2008 is annexed herewith and marked as ANNEXURE A-11. (e) A copy of the Agreement of the Hypothecation of Goods and Assets dated 16.05.2008 is annexed herewith and marked as ANNEXURE A-12. (f) A copy of the Deed of Guarantee for Overall Limit dated 16.05.2008 is annexed herewith and marked as ANNEXURE A-13. (g) A copy of the Letter Rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herewith and marked as ANNEXURE A-30. (x) Copies of the Letter of Authority to Lead Bank i.e. Applicant herein and Second Lead Bank i.e. Punjab National Bank dated 17.10.2008 is annexed herewith and marked as ANNEXURE A-31 . (y) A copy of the Certificate dated 17.10.2008 executed by the Corporate Debtor is annexed herewith and marked as ANNEXURE A-32. (z) A copy of the Declaration and Undertaking by Corporate Debtor, mortgaging property SCO 141-142-143, Sector 43-B, Chandigarh dated 08.11.2008 is annexed herewith and marked as ANNEXURE A-33. (aa) A copy of the Certificate of Registration of Mortgage dated 24.11.2008 is annexed herewith and marked as ANNEXURE A-34. (bb) A copy of the Sanction Letter dated 28.03.2009 duly acknowledged by the Corporate Debtor is annexed herewith and marked as ANNEXURE A-35. (cc) A copy of the Extracts of Minutes of Meeting of the Board of Directors of the Corporate Debtor dated 31.07.2009 is annexed herewith and marked as ANNEXURE A-36 . (dd) A copy of the Resolution passes in the Annul General Meeting of the Corporate Debtor held on 30.09.2009 is annexed herewith and marked as ANNEXURE A-37. (ee) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t dated 05.05.2011 is annexed herewith and marked as ANNEXURE A-54. (vv) A copy of the Working Capital Consortium Agreement dated 05.05.2011 is annexed herewith and marked as ANNEXURE A-55. (ww) A copy of the Deed of Guarantee dated 05.05.2011 is annexed herewith and marked as ANNEXURE A-56. (xx) A copy of the Continuation of Fund Based Working Capital limits and Non-Fund Based Working Capital limits dated 01.12.2011 duly acknowledged by the Corporate Debtor is annexed herewith and marked as ANNEXURE A-57. (yy) A copy of the Renewal Letter dated 02.04.2012 duly acknowledged by the Corporate Debtor is annexed herewith and marked as ANNEXURE A-58. (zz) A copy of the Inter se Agreement dated 14.12.2012 is annexed herewith and marked as ANNEXURE A-59. (aaa) A copy of the Extracts of the minutes passed by the CDR Committee of the Corporate Debtor dated 31.12.2009 is annexed herewith and marked as ANNEXURE A-60. (bbb) A copy of the Inter se Agreement dated 31.12.2012 is annexed herewith and marked as ANNEXURE A-61. (ccc) A copy of the Restructuring Package Approved under CDR System dated 29.01.2013 is annexed herewith and marked as ANNEXURE A-62. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been placed on record which relate to the aforesaid accounts of the Corporate Debtor in which financial debt were transferred by the Financial Creditor certifying the statement of accounts of the Corporate Debtor consist of printouts of data stored in various forms (Annexure A-77). 10. As per the averments of the Financial Creditor , the account of the Corporate Debtor was declared as Non-Performing Asset (NPA) on 18.04.2012 in its books. In view of the repeated defaults on the part of the Corporate Debtor to comply with the repayment of the principal and interest dues, the Financial Creditor was constrained to issue the recall notice dated 07.08.2013 under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for amount totalling ₹ 560,87,81,899.46/- as on 07.08.2013 but inspite of the notice they failed to clear the unpaid debt/liability. Another notice was also sent by the Financial Creditor to the Corporate Debtor on 15.02.2017 wherein a demand for a sum of ₹ 942,32,59,302.00 as on 31.01.2017 was raised with further interest, penal interest, incidental expenses etc. A copy of the recall noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Initiation of corporate insolvency resolution process by financial creditor. 7(1) . 7(2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. 7(3) 7(4) . 7(5) Where the Adjudicating Authority is satisfied that- ( a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) 15. A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. We are satisfied that a default amounting to lacs of rupees has occurred within the meaning of Section 4 of the Code and the application under sub-section (2) of Section 7 is complete; and no disciplinary proceedings are pending agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er services or supplies as provided by Regulation 32 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 20. The Interim Resolution Professional shall perform all his functions religiously and strictly which are contemplated, inter alia, by Sections 15, 17, 18, 19, 20 21 of the Code. He must follow best practices and principles of fairness which are to apply at various stages of Corporate Insolvency Resolution Process. His conduct should be above board independent; and he should work with utmost integrity and honesty. It is further made clear that all the personnel connected with the Corporate Debtor, erstwhile directors, 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 affairs of the Corporate Debtor. In case there is any violation committed by the ex-management or any tainted/illegal transaction by ex- directors or anyone else the Interim Resolution Professional/Resolution Professional would be at liberty to make appropriate applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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