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TMI Blog2020 (4) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner Bank under section 7 of IBC is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process against the Corporate Debtor. Hence, the present IB Petition is admitted with the following Directions/observations. The date of admission of this petition is 13-1-2020. Thus the present IB petition filed under section 7 of the IBC stands admitted on 13-1-2020 - Moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... the Applicant and other consortium lenders, there was no substantial improvement in the operation of the Respondent company and service of debt. Accordingly, the account of the Respondent company became irregular and was declared as NPA on 29-6-2012. 7. Subsequently, the Applicant recalled the loan and invoked the guarantees and issued Demand Notice under section 13(2) of the SARFAESI Act on 31-1-2015. However, the Respondent company failed to pay the dues of the Applicant along with other consortium lenders and hence, the Applicant and other consortium lenders filed a Recovery Application before the DRT, Ahmedabad vide Original Application No. 150 of 2016 on March' 2016, which is pending for adjudication. 8. Various loans/credit facilities granted by the applicant Bank are narrated as under: (a) OCC Limit for ₹ 104.00 Crores. (b) OCC Adhoc for ₹ 5.00 Crores. (c) FITL for ₹ 14.30 Crores. Thus, total aggregate limit of ₹ 123.30 Crores (OCC/FITL) were sanctioned by the Applicant Bank vide sanction letter dated 29-12-2012 & 30-6-2014 with terms and conditions including hypothecation of plant and machineries, mortgage of immovable properties, perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 1638762764.54 330910723.71 200427176.04 2170100664.29 Adhoc OCC 83575430.00 0 0 83575430.00 FITL 199488427.55 0 0 199488427.55 Total 1921826622.09 330910723.71 200427176.04 2453164521.84 12. The Petitioner Bank, in support of its contentions has annexed the details of Financial Debt, Records and evidences of default including copies of all the sanction letters, the workings showing the amount claimed to be in default and its calculation in tabular form as on 14-5-2018 along with CIBIL report and Valuation reports. 13. The present application has been filed by the Financial Creditor under section 7 of the Insolvency & Bankruptcy Code, 2016 read with rule 4 of the Insolvency & Bankruptcy before this Adjudicating Authority to initiate the Corporate Insolvency Resolution Process. 14. The Financial Creditor, to substantiate its claim, has enclosed following documents: - i. Copy of Sanction letter dated 29-12-2012 for sanctioning restructured OCC Limit and FITL (Pages No. 316 to 324 of paper book); ii. Copy of Sanction letter dated 30-6-2014 for sanctioning Adhoc OCC Limit(Pages No. 325 of paper book); iii. Copy of Amendatory and restated Security Trustee Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate under Banker's Book Evidence Act, 1891 and IT Certificate (Pages No. 943 of paper book); xxv. Copy of the Audited Balance Sheet for the year 2016-2017 (Pages No. 944 & 961 of paper book); xxvi. Copies of Valuation Reports as Exhibit E-l, 2, 3, 4, 5, 6, 7 & 8 of the properties owned by the Corporate Debtor, Guarantors and Corporate Guarantors (Pages No. 55 to 313 of paper book) xxvii. Copy of CIBIL Report dated 15-5-2018 (Pages No. 935 to 942 of paper book) 15. In the present matter, this Tribunal, vide its order dated 09-7-2018 had directed the Petitioner Bank to serve the notice of date of hearing to the Corporate Debtor and file the proof of service of notice before this Tribunal. Thereafter, the Respondent, Corporate Debtor appeared before this Tribunal on 31-8-2018 and sought time to file objections within two weeks. 16. In response to the present IB. Petition filed by the Petitioner Bank, the Respondent has filed its objections on 29-10-2018, denying each and every averment, submission and the statement made by the Applicant. 16.1 It is pleaded by the Respondent that the application filed by the Applicant is not maintainable being barred by limitation. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 19.95 crores respectively, however upon perusal of the notice issued under section 13(2) of the SARFAESI Act, it can be gathered that no outstanding balance against adhoc OCC and FITL has been claimed. Hence, the documents relied upon by the Applicant itself clearing establishes that there was no outstanding liability under adhoc OCC and FITL. 16.6 It is submitted that the Applicant has relied on certain calculation sheets developed manually containing ROI ranging from 14.30% p.a. to 16.50% p.a. and the Applicant has not relied upon any such sanction which permits the Applicant to charge the said ROI and is accordingly put to strict proof thereof. It is submitted that the Applicant has charged penal interest and also compounded the same, which is against the guidelines of RBI and judgment of Apex Court in the matter of Central Bank of India v. Ravindra [2002] 36 SCL 1. 16.7 It is submitted that in the calculation shown as per Exhibit D, the Applicant has not shown the amount of ₹ 68,38,37,594.47Ps deposited by the Respondent. It is further submitted that the Applicant has allegedly treated the account of the Respondent as NPA w.e.f. 29-6-2012, however, the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the Counsels were granted liberty to submit their written submissions within one week. The counsels of the Petitioner and the Respondent were present and put forth their submissions before the Bench. 18. On 22-7-2019, the Applicant Financial Creditor filed rebuttal documents, in compliance of the orders dated 27-11-2018 of this Adjudicating Authority in support of their claims. 19. Further, the following are the pending matters in relation to this Corporate Debtor - i. IA 237 of 2019 in CP(IB) 279 of 2018 filed by the Krishna Knitwear Technology Ltd. v. Andhra Bank The instant Interlocutory Application is filed by the Applicant (Respondent herein) under section 65(1) read with section 60(5) read with section 424 of Companies Act, 2013 read with rule 11 of NCLT Rules, 2016 against the Respondent (Applicant Bank herein) with regard to the maintainability of the Petition filed under section 7 of IBC, 2016 for initiating CIRP against the Respondent with the following reliefs - "(a) That the application of the Respondent being CP(IB) No. 279/7/NCLT/AHM/2018 which has been filed with malicious intent be dismissed with cost upon the Respondent (b) That this Hon'ble T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. (c) To defer the hearing of CP(IB) No. 279/7/NCLT/AHM/2018 until final adjudication of the present application. (d) Issue notice to the Respondent Bank under section 65 of Insolvency & Bankruptcy Code, 2016. (e) May be pleased to impose a penalty of Rs.l Crore upon the Respondent Bank on account of initiating and pursuing a malicious proceeding against the Corporate Debtor under Insolvency & Bankruptcy Code." 20. It is also observed that the Office of the Deputy Commissioner of Income Tax, Central Circle-5(3), Mumbai has submitted a letter dtd: 16-9-2019, claiming an outstanding demand of ₹ 376.57 Crores against the Corporate Debtor for the assessment year from 2008-09 to 2016-17. 21. The Petitioner Bank has suggested the name of Insolvency Professional to be appointed, if this petition is allowed and the proposed I.R.P. has also given his affirmation/consent in writing, which is annexed with the present IB. Petition. OBSERVATIONS 22. It is found that the Petitioner Bank has submitted the documents duly executed by the Corporate Debtors and guarantors along with a Certificate under the Banker's Book of Evidence Act, 1891, in support of their IB Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g copies of loan documents confirming the existence of debt due and default and proposed a name of Resolution Professional to act as an Interim Resolution Professional (IRP). 29. IA 237 of 2019 is filed by the Applicant (Respondent herein) under section 65(1) read with section 60(5) read with section 424 of Companies Act, 2013 read with rule 11 of NCLT Rules, 2016 against the Respondent (Applicant Bank herein) with regard to the maintainability of the Petition filed under section 7 of IBC, 2016 for initiating CIRP against the Respondent. Having heard the arguments and documents/papers submitted, we do not find any reason to grant any reliefs sought in this IA. Hence, the said IA 237 of 2019 is disposed of, as mentioned above. 30. IA 571 of 2019 is filed by the Applicant (Respondent herein) under section 60(5) of IBC, 2016 against the Respondent (Applicant Bank herein) seeking directions to reject the petition filed by the Applicant Bank under section 7 of IBC, 2016. Documents have been submitted by the Financial Creditor before this Adjudicating Authority in support of their claim to initiate CIRP. Hence, the reliefs sought by the Corporate Debtor to reject the application for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (1) shall not apply to (a) such transactions as maybe notified by the Central Government in consultation with any financial sector regulator. IV. The order of moratorium shall have effect from the date of this order till the completion of the Corporate Insolvency Resolution Process. 33. This Adjudicating Authority hereby appoints, as proposed, Mr.Brijendra Kumar Mishra, having Insolvency Professional Registration No. IBBI/IPA-002/IP-N00109/2017-18/10257, Email ID: [email protected], Mob. No. 9920109000, Address: Flat No. 202, 2nd Floor, BhojBhavan, Plot N0.18-D, Sion-Trombay Road, Chembur, Mumbai -400071, India as an Interim Resolution Professional. The Interim Resolution Professional is further directed to make public announcement of moratorium in respect of Corporate Debtor soon after receipt of an authenticated copy of this order and to act further as per the order/direction issued by this Adjudicating Authority and to follow the provisions under sections 13 and 14 and other relevant provisions of the Insolvency and Bankruptcy Code. 34. The IRP is hereby advised to adhere the time limit as stipulated for completion of the Corporate Insolvency Resolution Process (&qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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