9911796707
TMI Blog2019 (4) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... orated on 28.02.1986 having its registered office at 806, Devika Tower - 6, Nehru Place, New Delhi - 110019. 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 Corporation Bank is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 having its Registered Office at Mangaladevi Temple Road, Pandeshwar, Mangalore, Karnataka - 575001. 4. Mr. Debraj Bag authorized representative and working as Assistant General Manager of the applicant bank, has preferred the present application on behalf of the applicant for initiation of corporate insolvency resolution process against the respondent corporate debtor in terms of the provisions of the Code. 5. The applicant has proposed the name of Mr. Vivek Raheja, for appointment as Interim Resolution Professional having registration number IBBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry cum book debts/current assets of the company with other working capital lenders. b. Pari passu first charges on office premises admeasuring 3105 sq. ft. of super build up area in fourth floor "Jamal Chambers" with 1/4 share of undivided share i.e. 2250 sq. feet of land in that piece and parcel of land and building of an extent of 9000 sq. feet as per document (8929 sq. feet as per Patta) comprised in T.S. No. 79 and 86/1, Block No. 8, Adyar Division, Manbalam-Guindy Taluk bearing present Door no. 49/5 (Old Door No. 26) Mound Road, Saidapet, Chennai - 600015 with the Working Capital credit facilities. c. The Working Capital limits are collaterally secured by pari passu 2nd charge on the Fixed Assets of the Company. d. Second pari passu charges on all fixed assets of M/s UM Autocomp Pvt. Ltd. (except exclusive finance) with working capital lenders under consortium of Unitech Machines Limited. e. The Term Loan Pari passu first charge on Fixed 11 Assets of the company with other term lenders. f. The Term Loan limits are collaterally secured by pari passu second charge on the current Assets of the respondent Company. 10. It is also the case of applicant that the last repay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 119/- (Rupees One Hundred and Nineteen Crore) N.A. 3 Term Loan Rs. 18.50 Crores (Rupees Eighteen Crores and Fifty Lakhs only) 24.09.2012 14. The respondent corporate debtor has filed its reply on 05.11.2018. Rejoinder to the reply was filed by applicant on 15.11.2018. 15. We have heard the learned counsel for the parties and have perused the case records. 16. Various objections raised by the respondent corporate debtor are discussed below. 17. Respondent has raised an objection that the credit facilities were granted by consortium of banks and therefore the applicant bank does not have the requisite legal authority to move against the corporate debtor without approval of other lenders. It is stated that no amount can be claimed by the Applicant individually from the Respondent. Respondent has emphasized that the applicant Bank alone cannot file the present application without specific consent of the other consortium banks and without impleading them in the proceedings. 18. In this connection applicant has replied in the rejoinder that through the present Application, the Applicant is seeking to recover the loan amount individually extended by it to the Respondent. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority) Rules, 2016 accompanied with required information, documents and records as prescribed under the Rules. The form has been duly filled in along with required details and evidence of default. 23. The applicant has annexed copy of sanction letters, loan agreements, security documents, revival letters, Statement of accounts and balance confirmation certificates along with certificate under Section 2(A) of the Bankers Book Evidence Act etc. It is thus reiterated that the Form-1 filed in the present case under Section 7 of the Code read with Rule 4 of the Rules is complete in all respect and there is no infirmity in the same. 24. The corporate debtor has also alleged that excess interest has been charged by the banks and the amount claimed is incorrect. It is pertinent to mention in this regard that dispute over the quantum of default, cannot be a ground for rejection of an application under Section 7 of Code as the determination of quantum of financial debt is not within the domain of the Adjudicating Authority. 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 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to reject the application preferred by the financial creditor under Section 7 of the Code, there being default in payment of financial debt. 30. Respondent has raised another objection that the present application is not maintainable as applicant bank can only act through its authorized representative. It is alleged that there is no Board resolution authorizing Mr. Debraj Bag, Asst. General Manager to file the present petition on behalf of the applicant bank. 31. In this regard applicant bank in its rejoinder filed on 06.06.2018 has affirmed that Mr. Debraj Bag, AGM of the bank was duly authorized to sign and verify the present application. It is alleged in the rejoinder that the respondent company had taken irrelevant and unnecessary objections. 32. Hon'ble NCLAT in the case of Palogix Infrastructure (P.) Ltd. v. ICICI Bank Limited in Company Appeal (AT) (Insolvency) Nos. 30, 37 & 54 of 2017 at para 38 has held that : " If an officer, such as senior Manager of a Bank has been authorised to grant loan, for recovery of loan or to initiate a proceeding for 'Corporate Insolvency Resolution Process' against the person who have taken loan, in such case the 'Corporate Debtor' cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a default and not the exact amount due. Mere mismatch of the figures will ipso facto not estop the admission of corporate insolvency resolution process under Section 7 of the Code. 38. The materials on record and the loan documents clearly depict that the loan was sanctioned, disbursed and the loan agreements were properly executed. Respondent company utilized and enjoyed the loan facility. The applicant has placed on record several balance and security confirmation letters duly signed by the respondent in acknowledgement of the debt. That apart the applicant has relied upon the letter of respondent company confirming creation of mortgage by deposit of title deeds in order to secure the loan. 39. In addition, the applicant bank has filed the statement of accounts duly certified in accordance with Banker's Books Evidence Act, 1891 as per the requirement of Form 1 part V column 7 of the application. Certified copy of statement of account submitted by applicant bank pertaining to various loan facilities, kept during the course of banking business, basing on which the claim has been raised, can be termed as sufficient evidence of default in repayment of the financial debt. 40. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted on satisfaction that: i. Default has occurred. ii. Application is complete, and iii. No disciplinary proceeding against the proposed IRP is pending. 47. Hon'ble Supreme Court in the case of Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Limited reported in AIR 2017 SC 4532 at Para 19 has observed that : "Once the adjudicating authority / Tribunal is satisfied as to the existence of the default and has ensured that the application is complete and no disciplinary proceedings are pending against the proposed resolution professional, it shall admit the application. The adjudicating authority/Tribunal is not required to look into any other criteria for admission of the application." (Emphasis given) 48. An application of financial creditor 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. It is reiterated that the material on record clearly goes to show that respondent had availed the loan facilities and has committed default in repayment of the huge outstanding loan amount. 49. In the aforesaid factual background, it is seen that the applicant bank clearly comes within the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 where such property is occupied by or in the possession of the corporate debtor." 54. 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) Act, 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. 55. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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