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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 ..... o be allowed under section 10(4) of I B Code. Application admitted - moratorium declared - List the matter on 05.04.2017, for the filing of the progress report. - CP(IB) No. 10/GB/2019 In DY. NO. 3(159) of 2018 - - - Dated:- 29-3-2019 - MR JINAN K.R., MEMBER (J) For The Applicant/Operational Creditor : Mr Gaurav Khandelia, Adv For The Non/applicant/Financial Creditor : Mr Amit Kr. Sahewalla and J. Bharali, Adv. (For Bank of Baroda) ORDER 1. This application under Section 10 of the Insolvency Bankruptcy Code, 2016 (hereinafter referred to as Code of 2016 ) read with Rule 7 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short Rules of 2016 ) has been filed by the Corporate Debtor/applicant, namely Langlai Tea and Industries Ltd., seeking initiation of Corporate Insolvency Resolution Process ( CIRP ) against itself. 2. It has been submitted by the applicant that way back in 1991, the applicant herein approached a consortium of banks (consisting of State Bank of India and Bank of Baroda) and Tea Board seeking a term loan. On the request of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oached this Authority by way of the present applicant seeking initiation of CIRP. To substantiate its claim the undermentioned documents were produced on the side of the Corporate Applicant.- Sr. No. Particulars Annexure No. Page No. 01 Written communication by the proposed interim resolution professional Annexure-3 33-34 02 Copy of Ledger of relevant books of account of the corporate debtor, evidencing the default to creditors Annexure-4 35-37 03 Copy of audited financial statements for the year 2016-17 Annexure-5.1 38-81 04 Copy of audited financial statements for the year 2017-18 Annexure-5.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ₹ 186.11 lacs and ₹ 178.83 lacs respectively totalling to ₹ 344.94 lacs to the corporate applicant in the year 1993-94. However, the entire amount sanctioned by the bank has not been disbursed. The State Bank of India disbursed ₹ 163.50 lacs and the Bank of Baroda disbursed ₹ 160.358 lacs which was to be reduced by State Bank of India by ₹ 1.00 lac being fixed deposit with State Bank of India and by Bank of Baroda by ₹ 12.77 lacs being interest charged wrongly. The last disbursement by the banks was totalling to ₹ 310.09 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 ₹ 160.358 lacs out of sanctioned loan was ₹ 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 corporate applicant filed rejoinder contending in brief is the following - that the affidavit in opposition filed by the State Bank of India does not mention any illegality or failure in complying with any requirement as per section 11 of the I B Code. The application filed by the corporate applicant satisfies all the requirements to be meted out under section 10(3) of the I B Code and therefore, the application is liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent ₹ 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 the cause of default in repayment of the dues. 17. In Unigreen Global (P.) Ltd. v. Punjab National Bank (Company ?Appeal (AT) Insolvency No. 81/2017) the Hon ble National Company Law Appellate Tribunal has observed that so long as there is a debt and default has occurred and the application is complete and the applicant is not barred by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta 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 the corporate applicant has to produce a special resolution passed by the shareholders of the corporate applicant company approving the filing of application of this nature. Annexure- 7 is a copy of the resolution dated 29-9-2018. It reveals that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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; (3) Any action to foreclose, recover or enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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