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TMI Blog2019 (7) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner/Financial Creditor : Mr Ketan M. Parikh, Adv For The Respondent/Corporate Debtor : Mr Shriraj Khambete, Advocate on belalf of M/s Nanavati Associates, Advocate, ORDER 1. The present Application is filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as I B Code) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [ Adjudication Rules for short] to initiate Corporate Insolvency Resolution Process against M/s. New Gujarat Polyplast Pvt. Ltd. [hereinafter called as Respondent/Corporate Debtor ]. 2. The Applicant, Bank of Baroda, is incorporated under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Registered/Head Office at Baroda Bhavan, R.C. Dutt Road, Alkapuri, Baroda-390 007 and one of its branches at Parsi Sheri Branch, Surat. 3. The Corporate Debtor, M/s. New Gujarat Polyplast Pvt. Ltd., is a company registered under the Companies Act, 1956, (date of incorporation 17.02.1983, vide CIN: U25209GJ1983PTC005913), having its Registered Office at Block No.93, Plot No.B-17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total aggregate amount claimed to be in default in respect of various credit facilities are as under:- (details of facilities in which dues are pending) Cash Credit Facility Outstanding balance in respect of Principal amount as on 30.04.2016 (After adjustment of recovery made, if any) ₹ 48,56,56,930.5 Interest up to 19.04.2018 ₹ 15,43,16,129.8 Less Recovery made ₹ 99,52,094.89 Total outstanding amount payable as on 19.04.2018 ₹ 63,00,20,965.41 (Rupees Sixty Three Crore Twenty Thousand Nine Hundred Sixty Five and Forty One Paise only) The workings showing the amount claimed to be in default and its calculation in tabular form (together with the principal amounts, accrued interest and penal interest, as applicable) as on 19.04.2018 is annexed and marked as Annexure-I/3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-I/9); v) Copy of Corporate Guarantee dated 20.11.2012 executed by M/s. Kabra Plastics Ltd. Annexure-I/10); and vi) Copy of Supplement Agreement of Hypothecation dated 20.11.2012 Annexure-I/11) It is submitted that the Respondent/Corporate Debtor also signed and executed a letter of acknowledgement of debt on 11.05.2017. 7. That petitioner/financial creditor has also annexed copy of the sanction letter No.PARSIS/ADV/2015-16/15 dated 17.10.2015 as Annexure-I/5. 8. It is further stated that the respondent/corporate debtor company was irregular in making repayment of the instalments as per the terms and conditions of the agreement of the loan facilities availed by the corporate debtor, the accounts of the respondent/corporate debtor company were classified as Non-Performing Assets (NPA) on 31.03.2016. 9. It is further stated that at the time of availing the credit facilities, the respondent-corporate debtor, being a Co-Borrower/Guarantor, assured the petitioner-financial creditor that the credit facilities availed by them would be repaid as per the terms and conditions for repayment schedule of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (1) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3). (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application under sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn 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 back to Section 3(6) which defines claim to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (Section 4). The corporate insolvency resolution process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. A distinction is made by the Code between debts owed to financial creditors and operational creditors. A financial creditor has been defined under Section 5(7) as a person to whom a financial debt is owed and a financial debt is defined in Section 5(8) to mean a debt which is disbursed against consideration for the time value of money. As opposed to this, an operational creditor means a person to whom an operational debt is owed and an operational debt under Section 5(21) means a claim in respect of provision of goods or services. 28. When it comes to a financial creditor triggering the process, section 7 becomes relevant. Under the Explanation to Section 7(1), a default is in respect of a financial debt owed to any financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor. Hence, the present IB Petition can be considered for its admission. 17. The Financial Creditor has proposed the name of Mr.Ketulbhai Ramubhai Patel [Registration No.IBBI/IPA- 001/IP-P00228/ 2017-18/10427] in the present Insolvency Application, which satisfied with the requirement of Section 7(3)(b) of the I B Code. However, the Financial Creditor has also annexed a Written Communication received from the proposed Interim Resolution Professional for giving consent in prescribed Form 2, wherein he has mentioned his Registration No.IBBI/IPA-001/IP-P00228/ 2017-18/10427 and there is no disciplinary proceeding pending against the proposed IRP. 18. Having heard the submission of Mr. Ketan M. Parikh, Advocate for the Petitioner/Financial Creditor as well as Mr. Shriraj Khambete, Advocate, on behalf of M/s. Nanavati Associates, Advocate, for the Respondent/Corporate Debtor, we find the present IB petition deserves for admission. Hence, it is hereby admitted under Section 7 of the I B Code, for initiation of the C.I.R.P. in respect of the Corporate Debtor company with consequential directions/ order given as under: (i) That Moratorium und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17,18,20,21 of the Code. It is further made clear that all the personnel connected with Corporate Debtor, its promoter or any other person associated with Management of the Corporate Debtor are under legal obligation under Section 19 of the Code extend every assistance and co-operation to the Interim Resolution Professional. Where any personnel of the corporate debtor, its promoter or any other person required to assist or co-operate with IRP, does not assist or co-operate, IRP would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. (viii) The IRP shall be under duty to protect and preserve the value of the property of the Corporate Debtor company and manage the operations of the Corporate Debtor company as a going concern as a part of its obligation imposed by Section 20 of I B Code, 2016. (ix) The Financial Creditor is directed to communicate a copy of this order to the Interim Resolution Professional, the Respondent Corporate Debtor and the Registrar of Companies, Gujarat. 19. Registry is directed to communicate a copy of this order to the Applicant-Financial Credito ..... X X X X Extracts X X X X X X X X Extracts X X X X
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