9911796707
TMI Blog2018 (8) TMI 1840X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents filed by the Creditor, is of the view that the Corporate Debtor defaulted in repaying the loan availed and also placed the name of the Insolvency Resolution Professional to act as Interim Resolution Professional and there being no disciplinary proceedings pending against the proposed resolution professional, therefore the Application under sub-section (2) of section 7 is taken as complete, accordingly this Bench hereby admits this Petition prohibiting all of the following of item-I - Petition admitted. - CP (IB) -488/I&BP/MB/2018 - - - Dated:- 9-8-2018 - Mr. Bhaskara Pantula Mohan And Mr. V. Nallasenapathy, JJ. For the Petitioner: Mr. Rohit Gupta, Advocate a/w Mr. Pankaj Uttaradhi, Advocate and Ms. Yashaswini Chandra, For the Respondent: Mr. Shrikant V. Adwant, ORDER 1. JM Financial Asset Reconstruction Co. Ltd. (hereinafter called Petitioner ), the Assignee of debts by Corporation Bank, has sought the Corporate Insolvency Resolution Process of Veer Gurjar Aluminium Industries Pvt. Ltd (hereinafter called the 'Corporate Debtor'), under Section 7 of Insolvency and Bankruptcy Code, 2016 (hereafter called the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WCTL 800.00 3. 27.08.2010 Bill of Exchange 525.00 4. 27.08.2010 Term Loan 1330.00 5. 27.08.2010 FITL 136.00 Total 4041.00 4. The Petitioner has enclosed various security documents executed by the Corporate Debtor in 2008 and in 2009 when the facilities were rephased/enhanced. The Petitioner has enclosed the following documents executed in 2010 when the Corporation Bank enhanced the facilities- a. Term Loan Agreement dated 27.08.2010 b. Working Capital dated 27.08.2010 c. Funded interest Term Loan Agreement dated 27.08.2010 d. Third Supplementary Consortium Agreement dated 29.10.2010 e. Third supplementary inter se Agreement dated 29.10.2010 f. Joint deed of hypothecation dated 29.10.2010 g. Memorandum recording creatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition deserves to be rejected. e. The Resolution passed by the Board of Directors of Corporate Debtor in the meeting held on 13.10.2017 does not confer power on Mr. Varun Agarwal to file this petition as the resolution does not comply with the fundamentals of resolution under Companies Act, 2013 read with SSI i.e. Secretarial Standard on Meetings of Board of Directors issued by the Institute of Companies Secretaries of India which mandates that every resolution should bear the serial No. of the meeting which is absent on the resolutions placed on record. f. Indian Overseas Bank acting for Bank of India and Corporation bank has initiated proceedings under SARFAESI ACT against the Corporate Debtor by issuing demand notice under section 13(2) on 15.11.2011 wherein it was stated that the account of Indian Overseas Bank was classified as NPA on 05.08.2011, however, it is not mentioned when the loan account of Corporation Bank has been classified as NPA, thus the demand notice was bereft of necessary details as required under section 13(2) of SARFAESI Act, 2002 g. Already proceedings are pending before DRT, Aurangabad in respect of the same issue raised in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Statements enclosed with the petition shows zero balance, as on 28.02.2013 the working capital term loan account shows an opening balance of and closes at on the very same date which is absurd, the computerised statement at page 31 varies with the statement filed at page 32 and 33, likewise the same kind of discrepancies are pointed out in respect of Funded Term Loan Account, Term Loan Account and Cash Credit Account. l. The Corporate Debtor further submits that the petitioner is not in possession of original memorandum of equitable mortgages dated 11.06.2008 as stated before DRT, Aurangabad, and no reliance can be placed on the said memorandum by this Tribunal, hence the petition deserves to be dismissed. m. It is further submitted that, due to the defects in the accounting system of the petitioner, the inference could be that the petitioner failed in its duty to maintain the loan account properly and hence the claim is arbitrary, inflated and not recoverable. It is specifically averred that the amount shown as due under bill discounting facility is absolutely false and is a fake claim and the petitioner failed in its duty to file certified loan account of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the provisions of the Securitisation Act, 2002 and in fact it is the Corporate Debtor who trespassed into the property and taken forceful possession of the property after AIRCIL (assignee of 10B) taken possession of the mortgaged property under SARFAESI Act, thereafter AIRCIL filed complaint against the representatives of the Corporate Debtor. g. It is submitted that the claim is secured by Security interest on the mortgaged properties and the same can be verified by documents relating to creation for modification of charge in favour of AIRCIL and also by the certificate of registration/ modification of charge issued by the ROC. h. It is contended that the proceedings before DRT/ SARFAESI are for recovery of dues wherein this proceeding is for Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code. i. The Petitioner contends that the statement of accounts are maintained as per the guidelines issued by RBI and has been duly certified by Bankers Books Evidence Act, 1879. j. The Petitioner submitted that the judgement of the Hon'ble High Court of Bombay, Bench of Nagpur in LPA No. 131/2003 is not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any importance in view of the fact that the proceedings are under Insolvency and Bankruptcy Code and not under the Companies Act. 15. This Bench has gone into the details provided in the Form 1 filed by the petitioner and the same is in order and hence the contention of the petitioner that the petition filed is not as per Form 1 does not deserve any consideration. 16. The Corporate Debtor contended that demand notice issued under the SARFAESI Act, by Indian Overseas Bank does not contain the date of NPA of the loan of Corporation Bank. The petitioner in the rejoinder submitted that the date of NPA of Corporation Bank was mentioned as 08.07.2011 in the SARFAESI Notice. This Bench has gone through the SARFAESI Notice and the date of NPA of Corporation Bank is mentioned as 08.07.2011 at pg. no 579. Hence this contention of the Corporate Debtor fails. Further the explanation to Section 7 (1) of 1B Code provides that a default includes a default in respect of a financial debt owed not only to the Applicant Financial Creditor but also to any other Financial Creditor of the Corporate Debtor. In view of admission of date of NPA of Indian Overseas Bank by the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Deeds which was also registered with ROC. Since 10B is the leader of consortium it is natural that the Title Deeds are in possession of 10B. Hence the contention of the Respondent that the Petitioner has not placed on record the memorandum's dated 24.12.2008 and 03.12.2009 and hence the Petition deserves no consideration, is not correct. 21. The Hon'ble NCLAT in the case of Unigreen Global Private Limited v. Punjab National Bank ors., [2018] 145 SCL 272 in Para 17 quoted Para 27 and 28 of the Hon'ble Supreme Court's judgment in Innoventive Industries Ltd. v. ICICI Bank and Ors, AIR 2017 SC 4084 27. The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an insta/ment amount. For the meaning of debt , we have to go to Section 3(11), which in turn tells us that a debt means a liability of obligation in respect of a claim and for the meaning of claim , we have to go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has occurred, that the corporate debtor is entitled to point out that a default has not occurred jn the sense that the debt , which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be. The rational and reasoning which can be drawn from the above lines of the citations clearly indicate mainly two aspects and that is existence of a debt and the default which the present facts of the case clearly demonstrate. So any amount of argument that deals with issues which are not pertinent and trivial to the main issues concerned does not or cannot come in the way of adjudication of the lis in favour of the Petitioners. The present facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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