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TMI Blog2019 (8) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Technical) The Applicant 'State Bank of India' (in short, "Financial Creditor") has furnished Form No. 1 under Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (Rules) in the capacity of "Financial Creditor" on 17.01.2019 by invoking the provisions of Section 7 of the Insolvency and Bankruptcy Code (Code) against M/s. Bhatia Coke & Energy Limited ("Corporate Debtor") to initiate Corporate Insolvency Resolution Process (CIRP) on the ground that as on 31.12.2018, the Corporate Debtor has defaulted in making a total repayment of Rs. 125,89,60,431.52 (Rupees One Hundred and Twenty Five Crores Eighty Nine Lakhs Sixty Thousand Four Hundred and Thirty One and Fifty Two Paise). The date of defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and building, plant and machinery, equitable mortgage of 77 different properties on pari passu basis, hypothecation of current assets of the company and personal guarantee/guarantors for the Corporate Debtor. 6. To support their claim, the Creditor Banks have filed dates and events disclosing existence of debt and occurrence of default, which are as follows: S. No. DATES EVENTS 1. 29.07.2009 Loan Sanction letter by State Bank of India 2. 03.09.2009 Loan Sanction letter by State Bank of Mysore 3. 16.09.2009 Deed of Guarantee Agreement and Deed of Hypothecation (Vol.2, P.230) 4. 17.03.2011 Joint Working Consortium Agreement for old and new working capital facilities between Corporate Debtor and Financial Creditors namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mysore and Rs. 15 crores from Punjab National Bank). It is further submitted that a revival letter dated 25th August 2016 was executed by the Corporate Debtor and all Guarantors involved for the continuation of acceptance of the conditions given in the loan facility. The word appearing therein is: "I/We acknowledge for the purpose of section 18 of the Limitation Act, 1963 and any like limitation law in order to preclude any question of Limitation Law, that I/we am/are liable to you for the payment of all outstanding with interest, cost, charges and expenses and other monies due and payable by me/us to you in respect of the said credit facilities granted and/or to be granted under the said documents or in any other manner and which said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RBI Circular dated 12.02.2018 which had mandated Banks to necessarily file Applications under the Act for recovery of stressed assets. The present proceedings has been initiated against the Corporate Debtor, being a power-generating company, in the aftermath of the above circular and hence has to be quashed as being non est as held by the Hon'ble Apex Court. 8.4 The Corporate Debtor counsel stated that they had received a copy of impugned application only on 02.04.2019. Aggrieved by the filing of the above application, a Writ Petition No.11082/2019 was filed in the Hon'ble High Court of Madras on 02.04.2019 praying for a Writ of Mandamus to forbear the Financial Creditor from proceeding with the impugned application pending consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest costs, charges and expenses due in respect thereof. Therefore, as per the terms of agreement, the Financial Creditor can ask the outstanding dues at any time and Corporate Debtor is bound to repay entire sum forthwith. Due to the default committed by the Corporate Debtor in servicing their repayment or the guarantees, a recall notice has been issued to the Corporate Debtor on 11.08.2017 calling for a settlement of entire dues within a period of 15 days. 10. On looking at the submissions of either side, it has been proved that the Financial Creditors have not accepted the OTS proposal offered by the Corporate Debtor. With regard to the claim that they have filed a Writ Petition No.11082/2019 and the Miscellaneous Petition No.52783/2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 within three days from the date the copy of this order is received, and call for submissions of claim in the manner as prescribed.- I. That Moratorium is hereby declared prohibiting all of the following actions, namely, a) 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; b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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