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TMI Blog2019 (7) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... loan. On the request of the applicant, the State Bank of India, Bank of Baroda and Tea Board disbursed following amount to the CD: Rs. 163.501 lacs Rs. 160.358 lacs Rs. 80.000 lacs However, it has also been submitted that the loan was not disbursed in according with the terms & conditions of such loan for which the applicant herein could not utilize the loan in implementing the project for which the loan was sanctioned. 3. It has further been submitted that since the loan was not disbursed in accordance with the terms & conditions of the loan, the applicant suffered a loss and as such loan could not be repaid as per terms & conditions of repayment schedule. Therefore, filed this application seeking initiation of CIRP against it. 4. It has also been submitted that the banks filed a recovery proceeding against the applicant herein in Debt Recovery Tribunal in 2002, wherein the applicant has filed a counter claim in 2003. In 2004, DRT found breach of contract on the part of the banks and, therefore, rejected the banks' claim as being pre-mature one and applicant was granted compensation of Rs. 1.22 crores. Subsequently, an appeal was preferred before the Debt Recovery Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 221 11 Copy of OTS proposal by SBI dated 13.09.2017 Annexure-10.21 237 12 Copy of company reply to OTS dated 31.10.2017 Annexure-10.21 238 13 Copy of valuation reports dated 06.03.2018 by SBI - Report 1 Annexure-10.23 259-287 14 Copy of valuation reports dated 06.03.2018 by SBI - Report-2 Annexure-10.24 288-298 8. There are three FCs who had lent money to the corporate applicant. Amongst the three FCs, State Bank of India and Bank of Baroda filed reply affidavit objecting this application. However, Tea Board who is one of the FCs has not turned up despite service of notice, and not chosen to file any affidavit in reply. 9. The State Bank of India filed reply affidavit contending in brief is the following - that the corporate applicant suppressed the material facts and came before this Tribunal with unclean hands. The corporate applicant was provided project finance by the consortium comprising of the State Bank of India and Bank of Baroda under NABARD Re-finance Scheme with Tea Board also providing soft loan to the corporate applicant. The State Bank of India and Bank of Baroda agreed to sanction term loan of Rs. 186.11 lacs and Rs. 178.83 lacs respectively tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing -that sanction of loan by Bank of Baroda along with State Bank of India as the member of the consortium bank comes to totalling of Rs. 364.93 lacs. Though the consortium bank sanctioned term loan totalling to Rs. 364.93 lacs, the total disbursement by the banks only to the tune of Rs. 310.09 lacs as on 21-04-1998. The applicant company was put to distrust situation since State Bank of India did not grant the sanctioned working capital facility and also refused to grant NOC to a third bank for working capital facility. The Bank of Baroda disbursed the loan sanctioned by it as per the requirement and conditions of the sanction letter. There was no demand by the corporate applicant for release of the remaining amount. The Bank of Baroda disbursed the amount of Rs. 160.358 lacs out of sanctioned loan was Rs. 178.83 lacs. As per the Order of the Debt Recovery Appellate Tribunal, Kolkata the claim of the consortium banks has been allowed. The Order of the Debt Recovery Tribunal, Guwahati allowing counter claim of the applicant has been set aside by the Debt Recovery Appellate Tribunal, Kolkata. Upon the above contentions, the FCs prays for rejection of the application. 12. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lacs from State Bank of India and Bank of Baroda and soft loan from Tea Board. The loan was availed by the corporate applicant for setting up a project under NABARD Re-Finance Scheme with Tea Board. Out of the loan availed by the corporate applicant, the State Bank of India has lent an amount of Rs. 163.50 lacs and Bank of Baroda has lent Rs. 160.358 lacs and Tea Board has lent Rs. 80.00 lacs. It is an admitted fact that the corporate applicant has defaulted in repaying the amount as per the requirement and conditions of the sanction letter. 16. The corporate applicant alleged that the default was occurred for want of disbursement of the full loan amount sanctioned by the consortium banks. According to the learned counsel appearing for the FCs, there was no demand by the corporate applicant for release of the remaining amount at the relevant time as per the terms & conditions of the sanction letter. According to them, the contention of the applicant with regard to non-disbursement of the sanctioned amount is incorrect. This application being filed under section 10 of the I & B Code, there is no necessity to go into details of the allegations leveled by the applicant with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debt Recovery Tribunal and went up to the Hon'ble Debt Recovery Appellate Tribunal at Kolkata and the claim of the FCs has been confirmed by the Appellate Tribunal. However, according to the corporate applicant an appeal has been preferred before the Hon'ble High Court at Kolkata challenging the Order of the Appellate Tribunal and the same is pending for consideration. Initiation of recovery proceeding under the SARFAESI Act,2002, by the FCs is also not a bar to initiate corporate insolvency resolution process in an application filed by the corporate applicant under section 10 of the I & B Code. The FCs admittedly issued notice of default. Therefore, existence of a debt due to the FCs and default in repayment of loan amount availed by the corporate applicant stand proved in the case in hand. 19. The corporate applicant has also filed copy of audited financial statement for the financial year 2016-17 (Annexure- 5.1), copy of audited financial statement for the financial year 2017-18 (Annexure - 5.2) and unaudited financial statement for the period ended on 31-10-2018 (Annexure- 5.3). 20. As per section 10(3)(c) of the I & B Code in order to maintain an application of this nature t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process is hereby admitted under section 10(4) of I & B Code. (ii) I hereby declare a moratorium and public announcement in accordance with Sections 13 and 15 of the IBC, 2016. (iii) The moratorium is declared for the purposes referred to in Section 14 of the Insolvency and Bankruptcy Code, 2016. The Interim Resolution Professional shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public announcement referred to in clause (b) of sub-section (1) of Section 15 of the Insolvency & Bankruptcy Code, 2016 shall be made immediately. (iv) Moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 prohibits the following: (1) The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (2) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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