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TMI Blog2019 (4) TMI 1751X X X X Extracts X X X X X X X X Extracts X X X X ..... Connaught Place, New Delhi-110001. 2. Mr. Devbrat Mitra, Legal Manager has been authorized by the Board Resolution dated 07.07.2017 (Annexure-B) to sign and submit the petition. 3. The Corporate Debtor-BHA Associates Private Limited was incorporated on 12.08.1999. The identification number of the Corporate Debtor is U1810DL1999PTC101143 and its registered office is situated at 40/43, Second Floor, Chittaranjan Park, New Delhi-110019. Its authorised share capital is Rs. 21,60,00,00/-and paid up capital is Rs. 20,38,900/- as per the memorandum of Association of the Corporate Debtor. A copy of the Memorandum of Association and the Articles of Association relating to Corporate Debtor has been placed on record (Annexure D & E). 4. The 'Financial Creditor'-Petitioner has proposed the name of Resolution Professional, Shri Pawan Kumar Agarwal, L2/37A, Ground Floor, Ekta Square, DDA, Kalkaji, New Delhi-110019. His registration number is IBBI/IPA-001/IP-P00852/2017-18/11435. A written communication dated 11.06.2018 signed by him in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record (at pg. 271-273). There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the monthly instalment due and payable by the Corporate Debtor to the Financial Creditor under the Loan agreement. 9. As per the averments of the 'Financial Creditor', the account of the Corporate Debtor was declared as Non-Performing Asset (NPA) on 23.08.2017 in its books. In view of the repeated defaults on the part of the Corporate Debtor to comply with the repayment of the principal and interest dues, the Financial Creditor was constrained to issue notice dated 23.08.2017 under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity 'the SARFAESI Act, 2002) and called upon the Corporate Debtor and Co-Borrowers to repay the outstanding amount of Rs. 2,17,98,631/- as on 23.08.2017 along with future interest @ 16.75% per annum w.e.f. 24.08.2017 till actual payment within 60 days together with any interest, penal interest, cheque bouncing charges, cost and other charges but inspite of the notice they failed to clear the unpaid debt/ liability. A copy of the recall notice has been placed on record (Annexure-P). 10. A record of default is also available with the Credit Information Companies like the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent schedule dated 04.10.2018 have been filed. It has been highlighted that as per the loan agreement, it was agreed between the parties that in case of default, the respondent was liable to pay the default money along with a floating rate of interest. It is submitted that the letter dated 16.07.2010 (Annexure R/2) on which reliance placed by the respondent saying that loan was restructured from charging a floating rate of interest to charging of fixed rate of interest, has never been received by the petitioner and it is mere a table work. It has then been submitted that no restructuring of loan has ever taken place and only the interest rate has been brought down from 16.50% to 12.00% on payment of switch fee, and the rate of interest being charged remained floating. It has also submitted that the reduction of rate from 17.50% to 12.00% as only one time and it remained to be charged at floating rate and not fixed. 14. At this stage it would be profitable to read the salient features of the amendatory agreement dated 14.07.2010, which are as under: "WHEREAS the BORROWERS has requested the lender for change in the rate of interest and accordingly adjust the tenure/tenor of repaym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of declaration of the account as a Non-Performing Asset Account w.e.f. 23.08.2017, continuously violated the terms of the sanction letter/loan agreement/amendatory agreement in relation to maintaining the account within the drawing limit/sanctioned limit. It is submitted that the amount claimed in Part-IV of the application is based on the statement of Accounts maintained by the petitioner in its ordinary and usual course of business and in accordance with the procedure. 17. Needless to say, that an application under Section 7 of the Code is acceptable so long as the debt is proved to be due & payable; and there has been occurrence or existence of default. What is material is that the default is for at least Rs. 1 Lakh. In view of Section 4 of the Code, the moment default is of Rupees one Lakh or more, the application to trigger Corporate Insolvency Resolution Process under the Code is maintainable. The Corporate Debtor has failed to show that there is no debt or default in existence so as to avoid the provisions of the Code. 18. It is appropriate to mention that the present application has been filed in 'Form-I' under Section 7 of the Insolvency and Bankruptcy Code, 2016 read w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .................... 7 (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) ........................" 23. A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. We are satisfied that a default amounting to crores of rupees has occurred within the meaning of Section 4 of the Code and the application under sub-section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the application warrant admission as it is complete in all respects. 24. As a sequel to the above discussion, this petition is admitted and Mr. Pawan Kumar Agarwal, L2/37A, Ground Floor, Ekta Square, DDA, Kalka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order by the Financial Creditor. The amount however be subject to adjustment by the Committee of Creditors. The amount must be accounted for by Interim Resolution Professional and shall be paid back to the Financial Creditor. 29. The Interim Resolution Professional shall perform all his functions religiously and strictly which are contemplated, inter alia, by Sections 15, 17, 18, 19, 20 & 21 of the Code. He must follow best practices and principles of fairness which are to apply at various stages of Corporate Insolvency Resolution Process. His conduct should be above board & independent; and he should work with utmost integrity and honesty. It is further made clear that all the personnel connected with the Corporate Debtor, erstwhile directors, promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and co-operation to the Interim Resolution Professio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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