9911796707
TMI Blog2018 (7) TMI 1897X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent 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 - As a sequel to the above discussion and in terms of Section 7 (5) (a) of the Code, the present application is admitted - Moratorium in terms of Section 14 of the Code also declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record. Shri Arvind Garg has agreed to accept appointment as the IRP if an order admitting the present application is passed. There is a declaration made by him that no disciplinary proceedings are pending against him in Insolvency and Bankruptcy Board of India or elsewhere. In addition, further necessary disclosures have been made by Shri Arvind Garg as per the requirement of the IBBI Regulations. Accordingly, he satisfies the requirement of Section 7 (3) (b) of the Code. 6. The details of various financial facilities sanctioned and amount disbursed in respective loan facilities have been given in Part-IV of the application as follows: Sr. No. Particulars Amount sanctioned / restructured last renewed Amount disbursed 1. Term Loan - 1 ₹ 54.36 crs. (sanctioned: ₹ 58.00 crs ₹ 58.00 crs. 2. FITL (funded interest term loan ₹ 13.48 crs ₹ 13.48 crs 3. Term Loan - 2 ₹ 67.00 crs. ₹ 61.86 crs. 3. A sub-limit of Term Loan-2 (over draft bills) ₹ 0.080 crs. (now devolved and defaulted) 4. Letter Guarantee ₹ 5.00 crs ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinuity dated 02.09.2014. • Trust receipt dated 02.09.2014. (AD-06). • Demand notice dated 09.02.2016. • Debit balance confirmation dated 30.09.2011. • Debit balance confirmation dated 05.04.2013. • Debit balance confirmation dated 31.03.2015. • Debit balance confirmation dated 23.09.2015. • Letter dated 12.01.2017 issued by respondent requesting One Time Settlement. 11. It is the case of applicant that despite all support at every step, the respondent company failed to comply with the applicable terms and conditions of the loan agreements executed from time to time in relation to the credit facilities. As the respondent failed to maintain financial discipline and committed default in repayment of the loan, the credit facilities were declared as Non- Performing Asset on 31.12.2015. 12. Thereafter, the Applicant sent a demand notice dated 09.02.2016 to the respondent, demanding payment of the credit facility as outstanding in favour of the Applicant. Subsequently on 16.03.2016, a legal notice was also sent to the Respondent to recover the credit facilities due and payable to the financial creditor. However, the notices were neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of financial debt. 18. 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 to secure the loan. Besides respondent corporate debtor signed Demand Promissory Notes and balance confirmation letters in respect of the outstanding debt. 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 CIBIL report in order to show that accounts of corporate debtor was reported as loss account. Additionally, the applicant has also furnished a copy of the order dated 21.09.2016 passed by Ld. CMM, Karkardooma Court, wherein a receiver was appointed to take possession of the mortgaged properties in order to facilitate the recovery of the dues of the applicant bank. 19. It is thus seen that the applicant 'financial creditor' has placed on record voluminous and overwhelming evidence in support of the claim as well as to prove the default. 20. The Respondent Corporate Debtor has filed its reply on 26.02.2018. The respondent has raised a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any demur or protest whatsoever. There is no dispute that parties are bound by the terms of the agreements mutually agreed and executed between them. In the present case it is also not in dispute that balance confirmation letters were executed by the respondent company from time to time admitting the outstanding debts mentioned therein. The applicant has also placed the compromise offer of the respondent dated 12.01.2017 wherein respondent itself had offered to pay ₹ 52.60 Crores to the applicant bank which was not accepted being a paltry amount in comparison to the actual outstanding dues. In that view of the matter, it does not lie in the mouth of the respondent Corporate Debtor to say that even one lakh is not due to the applicant bank for triggering Corporate Insolvency Resolution Process under the Code. 23. Respondent has also taken an objection that the account in question was wrongly declared as NPA. It has also been pointed out that the corporate debtor has already paid an amount of ₹ 5,99,38,356.94/- by 30.9.2015. Thereafter, despite paying the aforesaid amount the financial creditor informed to pay additional amount of Rs -only against the terms of the agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report in order to show the default committed by the respondent. The copy of order dated 21.09.2016 passed by Ld. CMM, Karkardooma Court has also been placed on record, which clearly suggests that a default has been committed by the respondent corporate debtor. The execution of demand promissory notes and balance confirmation letters further confirms that debts are outstanding in favour of the bank. There has been voluminous and overwhelming evidence in support of the proof of default. 27. Under Section 7 of the Code when there has been occurrence of existence of default which is much more than rupees I lakh as provided under Section 4 of the Code, the application is clearly maintainable and deserves to be admitted. It is also well settled that pendency of DRT proceedings or proceedings under SARFAESI Act, 2002 cannot create any bar on initiation of Corporate Insolvency Resolution Process under the Code. 28. The Code requires the adjudicating authority to only ascertain and record satisfaction in a summary adjudication as to the occurrence of default before admitting the application. 29. Hon ble Supreme Court in the case of Mobilox Innovations Private Limited V. Kirusa Software ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ienating 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. " 36. 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 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. 37. The Interim Resolution Professional shall perform all his functions conte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
