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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 ..... declared. - IBA/307/2019 - - - Dated:- 22-5-2019 - MR B.S.V. PRAKASH KUMAR, MEMBER (JUDICIAL) AND MR S. VIJAYARAGHAVAN, MEMBER (TECHNICAL) For The Financial Creditor : Mr Manoj Kumar Mishra, Advocate And Mr A.G. Sathyanarayana, Advocate For The Corporate Debtor : Mr Lakshmikumaran, Advocate, Mr. Sridharan, Advocate., Mr Krithika Jaganathan, Advocate, Mr A. Lawrence, Advocate and Mr P.S. Raman Raghavan, Advocate ORDER Per S. Vijayaraghavan, Member (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 ₹ 125,89,60,431.52 (Rupees One Hundred and Twenty Five Crores Eighty Nine Lakhs Sixty Thousand Four Hundred and Thirty One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ENTS 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, State Bank of India, State Bank of Mysore, Punjab National Bank and SBICAP Trustee Company Limited(Vol.2, P.392) 5. 27.07.2013 Agreement of Loan, Security Trustee Agreement and Deed of Hypothecation (Vol.1, P.77), Entry for date of creation of mortgage and declaration by various persons as a confirmation for extension of equitable mortgage (Vol.4, P.709) 6. 30.07.2013 Memorandum of deposit of title deed by Corporate Debtor (Vol.6, P.1067) 7. 12.10.2013 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r became Non Performing Asset (NPA) from 11.08.2017 . 8.1 The learned counsel for Corporate Debtor submitted that the Corporate Debtor which had earlier enjoyed 100% interchangeability of Bank Guarantees with Foreign Letter of Credits was restricted to 50% without any due warning or notice. On account of this sudden restriction, the working capitals proved inadequate for the Corporate Debtor to continue to effectively run the plant; 8.2 It is submitted that the Corporate Debtor in order to demonstrate its commitment to repay liabilities, remitted ₹ 6.87 crores. To give justification to this argument, the corporate debtor stated that they came forward with a Settlement Proposal vide letter dated 05.04.2019 offering upfront payment of 10% of principal outstanding i.e. ₹ 10.60 crores and balance amount of ₹ 95.42 crores in 5 equal quarterly instalments of ₹ 19.084 crores payable on 31.07.2019, 31.10.2019, 31.01.2020, 30.04.2020 and 31.07.2020. 8.3 To fortify its argument, the Corporate Debtor relied upon the case in between Dharani Sugars and Chemicals Ltd.-vs.- RBI 2019 SCC Online SC 460, in which the Hon'ble Supreme Court has quashed the RBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 before the Hon'ble High Court, Madras on 02.04.2019 and 15.04.2019 respectively, the Corporate Debtor has not mentioned that a stay order has not been granted by the Hon'ble High Court. The Orders of the Hon'ble Apex Court will specifically apply only to those companies against whom insolvency proceedings have been initiated based on RBI Circular. 11. In view of the reasons aforementioned and on perusal of the material furnished by the Financial Creditor, this Bench is of the view that the Corporate Debtor has defaulted in repaying outstanding debt of ₹ 125,89,60,431.52 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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