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TMI Blog2019 (5) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... amakrishna and Abhishek Dash, Advocates For The Respondent : Shri S. Sri Ram, P. Vikram and Nitish Bandary, Advocates ORDER 1. This petition is filed by M/s SREI Infrastructure Finance Limited, which is the Financial Creditor stating that M/s Amrit Jal Ventures Private Limited, Corporate Debtor herein had defaulted in repaying a sum of ₹ 45,03,86,213/- and hence this petition is filed under Section 7 of Insolvency and Bankruptcy Code, 2016, R/w Rule 4 of Insolvency Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, seeking admission of the Petition, initiation of Corporate Insolvency Resolution Process, granting moratorium and appointment of Interim Resolution Professional as prescribed under the Code and Rules thereon. 2. Brief averments made in the Petition are:- (1) M/s SREI Infrastructure Finance Limited, Petitioner/Financial creditor was incorporated on 29th March, 1985. M/s Amrit Jal Ventures Private Limited (Formerly known as Amrit Jal Ventures Limited) was incorporated on 18th June, 2001 having its registered office at 1-7-293, MG Road, Secunderabad - 500003.. The Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor could only start commissioning of its project at Chuzachen (Gati Infrastructure Pvt Ltd). It is further averred that as there was delay, the funds meant for other two projects were diverted to Chuzachen Project and commissioning of other two projects are still pending, only because of the delay on the part of the Financial Creditor to disburse the required funds, for which the Corporate Debtor has raised its claim before Arbitration Tribunal. (3) The Corporate Debtor contended that under the said Agreement, the Corporate Debtor pledged its shares and other securities amounting to ₹ 349.70 crores, which is more than the alleged debt amount, for which the Corporate Debtor filed Petition under Section 9 of Arbitration and Conciliation Act, 1996 to restrain the Financial creditor from creating any third party interest on the shares invoked by it. Similar interim direction was also passed in APOT No.88 of 2016 on 28.06.2016 by Hon'ble High Court, Kolkatta. (4) It is also alleged that the Petitioner/ Financial Creditor filed OA No.559/2015 on 19.10.2015 for recovery of alleged debt under Section 19 of Recovery of Debts due to Banks and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner/Financial Creditor was required to disburse ₹ 80 crores in a phase-wise manner to the Corporate Debtor upon fulfilment of certain preconditions. Further its case is that though the Corporate Debtor fulfilled all preconditions, the Financial Creditor only disbursed ₹ 30 crores and as a result the Corporate Debtor failed to complete the projects and sustained loss of revenue. The Financial creditor breached the terms of Agreement. (9) It is the case of the Corporate Debtor that it invoked provisions of Arbitration and Conciliation Act, 1996 and elected Arbitral Tribunal as First forum for adjudication of disputes and Financial Creditor contested the Arbitration proceedings and filed its counter-claim. (10) The Corporate Debtor contended that the Company had periodically remitted payment amounting to ₹ 28,40,67,501/- and that there is no default as alleged in the Petition and the documents relied upon by the Petitioner in SI.No.8 of Part-V of the Petition do not establish the debt or default and the terms of undertaking dated 21.03.2013 are mutually contradictory and incongruous. 4. The financial Creditor file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or initiation of a proceeding by Financial Creditor under Section 7 of the IBC, 2016. 5. I heard the Counsels appearing for Financial Creditor and Corporate Debtor. The learned Counsels have filed their written submissions. 6. The Petitioner is Financial Creditor. The Petitioner filed this Petition to trigger CIRP against the Corporate Debtor on the ground that Corporate Debtor committed default of debt. The Petitioner had furnished the particulars of financial debt in Part-IV of Form-1. The total amount stated to have been committed default is ₹ 45,03,86,230/- as on 13.12.2017. The date of default is 15.11.2015. The contention of the Petitioner that Corporate Debtor made a request for Term Loan/ Rupee Loan Facility for the purpose of its business. After consideration, Rupee Loan Agreement (RLA) was executed on 19.04.2011 wherein Petitioner agreed to provide Rupee Loan Facility of ₹ 80 crores to the Corporate Debtor. The copy of RLA dated 19.04.2011 is shown as Annexure-8 at page Nos. 70-133. 7. It is also the case of Financial Creditor, RLA was further amended by supplementary Agreement dated 03.06.2011 wherein repayment sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LA dated 19.04.2011. The Corporate Debtor also relied on the order copy dated 02.08.2016 passed in AP No. 6/16 by the Hon'ble High Court of Kolkata. It is marked as Annexure-4 to the counter. The contention of the learned Counsel for Corporate Debtor Hon'ble High Court of Kolkata appointed an Arbitrator for deciding the dispute arising under the RLA dated 19.04.2011. The Corporate Debtor also filed copy of the order passed by Hon'ble Apex Court dated 28.10.2016 in SLP No 3034/16. It is marked as Annexure-5. 11. The financial creditor has challenged the order passed by Hon'ble High Court of Kolkata by filing SLP 3034/16 before Hon'ble Apex Court. Leave was granted by Hon'ble Apex Court but directed the Arbitrator to continue the proceedings which is subject to the final outcome of the Appeal. So, appeal is pending before the Hon'ble Apex Court in respect of dispute arising under RLA and Arbitration Proceedings which are pending before Arbitrator who was appointed by Hon'ble High Court of Kolkata. Further the Financial Creditor also approached DRT-I Kolkata for recovery. 12. The main contention of the learned Counsel for F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial Creditor has not sold the shares. The contention of the learned Counsel for Financial Creditor that there was injunction not to sell the shares and security. Here Adjudicating Authority cannot go into the question regarding dispute over the invocation of shares which were pledged. The matter is sub judice. The limited question for the Adjudicating Authority whether Corporate Debtor committed default. Whether there was debt which was committed default. In this connection, it is necessary to refer to the definition of debt under Section 3 (11) of the Code. 3(11): debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt; 3(12) defines default which means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case maybe; Now the question whether the alleged debt became due and payable. The Financial Creditor has to establish that the debt of ₹ 30 crores sanctioned under RLA became due and payable by Corporate Debtor when petition is filed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Counsel for Financial creditor mere pendency of proceedings before DRT Kolkata and also before Arbitrator are no bar to initiate proceedings under Section 7 of IBC by the Financial Creditor. The learned Counsel for Financial Creditor referred to the order passed by Hon'ble NCLAT in Unigreen Global (P.) Ltd v. Punjab National Bank [2018] 89 taxmann.com 17/145 SCL 272 and contended that pendency of suit cannot be a ground to deny admission of an Application filed under Section 7 or Section 10 of the IBC. The Counsel further contended, Hon'ble NCLAT has held that proceedings initiated under SARFAESI Act or Recovery of Debts due to Banks and Financial Institutions Act, 1993 cannot be a ground for rejecting the Application filed under Section 7 of IBC. 18. The contention of the learned Counsel for Financial Creditor, existence of Arbitration Clause or pendency of proceedings under Arbitration Act maybe relevant for the purpose of proceedings against Corporate Debtor under Section 9 of IBC. However, the same is immaterial in case of proceedings initiated under Section 7 of the IBC and relied on the decision of Hon'ble Apex Court judgment dated 21.09 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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