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TMI Blog2019 (12) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred and it is of no matter that the debt is disputed so long as the debt is due that is payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date - In the present case, the evidence produced by the financial creditor has been discussed above and it has been concluded that a default has occurred. The debt is also due since it is not interdicted by any law. The occurrence of default is proved in the present case - application filed in the prescribed Form No.I is found to be complete - Application admitted - moratorium declared. - CP (IB) NO. 73 (CHD) OF 2018 - - - Dated:- 3-9-2019 - M.K. Shrawat, Judicial Member And Pradeep R. Sethi, Technical Member Ankush Chowdhary and Jasmeet Singh Bhatia, Adv. for the Petitioner. V.K. Sachdeva, Adv. and Sunny Juneja, Adv. for the Respondent. JUDGMENT Pradeep R. Sethi, The application in the prescribed Form No.1 is filed by ICICI B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of credit for short term loan of ₹ 50 crores was sanctioned for a validity of 12 months. It is stated that the repayment of the loan was 360 days or expiry of mentioned sub-limits was 360 days or expiry of contract from the earlier maximum repayment term of 270 days. (iv) On 28.12.2011, a Working Capital Consortium Agreement for granting short term loan for ₹ 125 crores with the Bank along with Punjab National Bank, Syndicate Bank and Axis Bank (Consortium Bank) was executed by the Corporate Debtor. The facilities were continued to be secured by the Consortium Banks by way of first pari passu charge on current assets and second pari passu charge on the fixed assets of the Corporate Debtor. (v) On 13.03.2012, further vide another Credit Arrangement Letter, a cash credit of ₹ 125 crores was sanctioned to the Corporate Debtor as a sub limit of the existing line of credit for the short term loan. (vi) On 24.04.2013, Further vide another Credit Arrangement Letter, the non- fund based facility towards Derivative was reduced from ₹ 20 crores to ₹ 10 along with sanction of line of credit for short term loan facility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 27.05.2010 Annexure-I, Credit Arrangement Letter dated 14.10.2010 Annexure-J, Master Facility Agreement dated 22.10.2010 Annexure-K, Credit Arrangement Letter dated 28.09.2011 Annexure-L, Master Facility Agreement dated 29.09.2011 Annexure-M, Working Capital Consortium dated 28.12.2011 Annexure-N, Credit Arrangement Letter dated 13.03.2012 Annexure-O, Credit Arrangement Letter dated 24.04.2013 Annexure-P, Credit Arrangement Letter dated 27.06.2014 Annexure-Q, Credit Arrangement Letter dated 10.04.2015 Annexure-R, Restructuring Agreement dated 23.06.2015 Annexure-S, and Joint Lenders Restructuring Agreement dated 27.06.2015 dated 27.06.2015. The repayment of loan is stated to be guaranteed and the guarantee deeds by different guarantors are stated to be at Annexures Z/3, Z/4, Z/8, Z/9, Z/13, Z/17 and Z/20 which are a part and parcel of the petition. 5. It is stated that due to continuous default in the repayment of loan, the account was classified as NPA on 31.12.2016 as per the Reserve Bank of guidelines. 6. It is further averred that a Joint Lenders Restructuring Agreement was executed between the Consortium Banks with Punjab National Bank as the Lead Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. R.Kartikeya, Advocate for the respondent states that Writ Petition (Civil) No.5555 of 2018 has been filed by the respondent-corporate debtor by impleading Reserve Bank of India and others including ICICI Bank Ltd., the petitioner herein, in which an order dated 20.05.2019 has been passed by the Hon'ble Delhi High Court directing to maintain status quo of the proceedings pending before NCLT, Chandigarh Bench filed by ICICI Bank Ltd. Learned counsel for the respondent seeks time to file certified copy of the aforesaid order. List the matter on 04.07.2018 for placing on record the copy of order of the Hon'ble Delhi High Court. 13. During the course of hearing on 12.10.2018, Learned Counsel for the petitioner submitted that Hon'ble High Court of Delhi has dismissed the Writ Petition, W.P. (C) No. 5555/2018 and now the matter is pending adjudication in Letter Patents Appeal before the Division Bench of High Court of Delhi. 14. The Hon'ble High Court of Delhi was further pleased to dismiss the appeal filed by the Respondent Corporate Debtor vide its order dated 06.02.2019 in LPA 579/2018. 15. On 18.03.2019, C.A. No. 191/2019 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier occasions and on the previous hearing of 26.04.2019, after seeing the conduct and delay in the proceedings, it was made clear that pleadings be completed in the main case well in advance before the next date and the matter was adjourned to 11.07.2019. It was noted that so far admittedly, no reply or pleading are submitted from the side of the corporate debtor. The Bench therefore, forfeited the right of the corporate debtor to file any reply/pleadings and after the forfeiture, right to argue on merits was granted to the corporate debtor. CA No.475/2019 was disposed and the main case was directed to be heard on merits on 12.07.2019. 20. On 12.07.2019, the learned counsel for the corporate debtor pleaded that in view of the filing of the SLP, he cannot make submissions on merits and requested for time for filing additional affidavit before the date of pronouncement. It was also pleaded that the Managing Director was indisposed but no evidence in this regard was furnished. 21. The learned counsel for the financial creditor stated that there was no reference in the application under Section 7 of the Code to the RBI Circular dated 12.02.2018. it was also pleaded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions that the reply/objections with power of attorney and the board resolution be filed within two weeks with a copy advance to the counsel opposite. The time was allowed as per the request of the learned counsel for the corporate debtor seeking two weeks' time to file the reply. However, the reply was not filed. Even vide order dated 26.04.2019, the parties were directed to complete the pleadings in the main case well in advance before the next date and the matter was adjourned to 11.07.2019. The reply was still not filed and it was noted in the order dated 11.07.2019 that CA No.475/2019 is in a way another attempt to seek adjournment on the ground that the corporate debtor has filed SLP before the Hon'ble Supreme Court. We may add here that the notice of the petition to the corporate debtor was issued on 27.03.2018 fixing the date of hearing for 02.05.2018 and on that date, the learned senior counsel for the respondent sought and was granted 10 days time to file the reply, however, the reply was not at all filed. In view of these facts, the right of the corporate debtor to file any reply/pleadings was forfeited by order dated 11.07.2019. The right to argue on merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the financial creditor filed the present petition. 28. It has been held by the Hon'ble Supreme Court in Innoventive Industries Ltd. v. ICICI Bank 143 SCL 625 (SC) that in the case of a corporate debtor, who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred and it is of no matter that the debt is disputed so long as the debt is due that is payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. In the present case, the evidence produced by the financial creditor has been discussed above and it has been concluded that a default has occurred. The debt is also due since it is not interdicted by any law. 29. Further, the Hon'ble Supreme Court also held in Para No.59 that the obligation of the corporate debtor was unconditional and did not depend upon infusing of funds by the creditors into the corporate debtor and that also, the argument taken for the first time that no debt was in fact due under the MRA as it had not falle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the corporate debtor. 36. It is further directed that the supply of essential goods or services to the corporate debtor as may be specified, shall not be terminated or suspended or interrupted during moratorium period. The provisions of Section 14(3) shall however, not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator and to a surety in a contract of guarantee to a corporate debtor. 37. The order of moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of Section 31 or pass an order for liquidation of corporate debtor under Section 33 as the case may be. 38. The following directions are also issued in respect of the appointment of the Interim Resolution Professional:- (i) Appoint Mr. Ravinder Agarwal, Address: SCO-131, Sector-5, MDC, Panchkula-134112, having Registration No. IBBI/IPA-001/IP-P00329/2017-18/10599 and email address: [email protected], Mobile No. 98117-76017 as an Interim Resolution Professional; (ii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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