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TMI Blog2019 (4) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Insolvency Resolution Process has been prayed for, was incorporated on 29.11.1985 and presently has its registered office Plot No. 139-A-l, S/F Mohammadpur, New Delhi-110061. 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 Mr. Sagar Seth, Authorised Signatory of the applicant company duly authorized by Board Resolution dated 17.08.2017 has preferred the present application on behalf of the applicant, M/s. Edelweiss Asset Reconstruction Company Limited, for initiation of Corporate Insolvency Resolution Process against the respondent corporate debtor in terms of the provisions of the Code. A copy of the relevant Board Resolution of the applicant company held on 17.08.2017 has been placed on record. 4. The applicant has proposed the name of Mr. Vikram Bajaj, 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 ..... 3. 9. It is further stated that due to failure on part of the Corporate Debtor to discharge its liabilities, the State Bank of India issued a Demand Notice under Section 13(2) of the SARFAESI Act, 2002 to the Corporate Debtor requesting it to discharge its liabilities in full within 60 days thereof. 10. In the meantime, vide a Deed of Assignment dated 11.08.2014 executed between the State Bank of India and the Applicant, State Bank of India assigned all its right, title, interest and benefit in respect of the debts against the Corporate Debtor Company together with security" interest therein to the Applicant. 11. Thereafter in terms of assignment deed dated 11.08.2014 the applicant had filed original application being O.A. No. 241/2015 before Debt Recovery Tribunal-I, New Delhi for recovery of the outstanding debts. 12. It has been stated at Part-IV of Form-1 that as on 31.08.2017 total amount of default is Rs. 194, 08, 60, 284/-. 13. The applicant has filed copies of all the relevant loan agreements, guarantee deeds, mortgage deeds, and revival and confirmation letters executed by the respondent company from time to time including the registration as well as modification of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor, certificate of registration of charge, assignment agreement, various loan and security documents, balance confirmation letters, revival letters and documents in support of creation of mortgage etc. Moreover the application discloses date wise disbursement of loan, particulars of financial debt along with documents and records in support of evidence of default. There appears to be no infirmity in the application form, being complete in all respect. 22. Respondent has raised another objection that an original application numbering 241 of 2015 has been filed for recovery of the financial debt in question against the respondent company in the Debts Recovery Tribunal New Delhi, which is till sub-judice. It is further submitted that applicant has already initiated proceedings under Securitization Act against which respondent has filed a securitization application bearing S.A No. 537 of 2016 which is also sub-judice before DRT Lucknow. Accordingly, it is argued that the applicant is indulging in forum shopping and the present application is not maintainable. 23. In this regard it is well settled that pendency of proceedings and initiation of action under SARFAESI Act and under Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared as NPA on 23.09.2013. Accordingly, it is argued that the present application is barred by limitation as the same is not been filed within three years from the date of accrual of cause of action. 30. In the present case there is no dispute that the loan was inter alia secured by mortgage of properties the details of which have been mentioned at Part V of the application. Copies of letters of confirmation of mortgage dated 27.08.2010, 09.05.2011, 08.09.2011 and 11.09.2012 have been placed on record. Besides copy of registration of charge issued by Registrar of Companies has also been placed on record. 31. Accordingly, as the loan transaction has been secured by mortgage the limitation period under Article 62 of Limitation Act is 12 (twelve) years. In the present case equitable mortgage was created over immovable property and was offered as collateral security for the loan and therefore the limitation period will be 12 (twelve) years. Accordingly, the objection that the claim is barred by limitation cannot sustain. 32. The respondent company has also challenged the deed of assignment executed by State Bank of India 15.08.2014 in favour of the applicant M/s. Edelweiss Asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be entitled to raise objection of mismatching of dues and excess charging of interest before the resolution professional/committee of creditors. Adjudicating Authority is only to ascertain the existence of a default and not to adjudicate and crystalize the claim as to how much is actually due and payable. Mere mismatch of the figures and dispute over quantum of default will ipso facto not estop the admission of corporate insolvency resolution process under Section 7 of the Code. 37. Respondent has further alleged that the applicant bank being in a dominant position got certain sets of unfilled papers, undated printed proformas, blank stamp papers and forms etc.; signed from the signatory of the respondent company. It is further alleged that SBI had not disbursed the loan amount on time as per the terms of the loan agreement causing loss to the respondent company. In this regard applicant has submitted in its rejoinder that the alleged plea of blank document is not a valid plea in the eye of law and alleged delay in disbursal are an afterthought and in any case irrelevant for the present proceedings. It is the case of the applicant that respondent suo moto had executed securit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d." (Emphasis Given) 42. In view of the precedent laid down by Hon'ble Supreme Court, pendency of winding petition before High Court will not be a bar for initiating proceeding under Section 7 of the Code. 43. It is pertinent to mention here that the scheme of the Code provides for triggering the insolvency resolution process by three categories of persons namely, a) Financial creditor b) Operational creditor, and c) Corporate debtor itself. 44. 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 only "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. 45. The expressions "Financial Creditor" and "Financial debt" have been defined in Section 5 (7) and 5 (8) of the Code and precisely "Financial debt" is a debt along with interest, if any, which is disbursed against the consideration for time value of money. 46. In the present case SBI had sanctioned and disbursed the loan amount recoverable w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules shows that the form is complete and there is no infirmity in the same. It is also seen that there is no disciplinary proceeding pending against the proposed IRP. Applicant has placed on record voluminous and overwhelming evidence in support of the disbursement as well as to prove the default. We are satisfied that the present application is complete in all respect and the applicant financial creditor is entitled to claim its outstanding financial debt from the corporate debtor and that there has been default in payment of the financial debt. 51. As a sequel to the above discussion and in terms of Section 7(5)(a) of the Code, the present application is admitted. 52. Mr. Vikram Bajaj, having registration number IBBI/IPA - 002/IP-N00003/2016-17/10003 resident of Flat No. 12, Vasudha Apartment, Plot - 41, Sector - 9 Rohini, Delhi - 110085 with email-id [email protected] is appointed as the interim resolution professional. 53. In pursuance of Section 13 (2) of the Code, we direct that public announcement shall be made by the Interim Resolution Professional immediately (3 days as prescribed by Explanation to Regulation 6(1) of the IBBI Regulations, 2016) with regard to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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