9911796707
TMI Blog2020 (7) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... creditor duly sanctioned and have disbursed various loan facilities to the corporate debtor and the same were availed of and utilized by it. The corporate debtor also confirmed its debts liability, through onetime settlement by offering 1,600 lakhs to the petitioner by its letter dated December 7, 2017 which could not be materialized. The corporate debtor was irregular in making repayment of its loan and the last payment was made by it on May 31, 2017. Hence, the present IB petition is found to be filed well within limitation and maintainable. Application admitted - moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-2013 1795 17340948.00 313506310000004 Term loan III 50293835.67 40552745.00 0.00 24-09-2013 1832 90846580.67 Total : 468777290.14 387225931.14 1151044 857154265.28 Statements of accounts (account wise) enclosed from page Nos. 175 to 197 A/32 to A/36 5. It is submitted that at the request of the respondent-corporate debtor, the petitioner has sanctioned and disbursed aforesaid loan/credit facilities by executing necessary loan agreements with the respondent-corporate debtor, such loan disbursed is recoverable with interest at applicable rate of interest. 6. In order to secure above stated credit facilities, the respondent-corporate debtor, through its authorized signatory/director, borrower/co-borrowers/ guarantors, has duly executed various security documents, in favour of the petitioner-bank (financial creditor), which are annexed with the present IB petition, and described as under : Part V Particulars of financial debt (documents, records and evidence of default) 1. Particulars of security held, if any, the date of its creation, its estimated value as per the creditor : (i) Hypothecation agreement of goods and debts (SD-06) was executed on March 29, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly the matter is listed on December 10, 2018 for final hearing. (ii) The corporate debtor has filed a securitization application bearing No. 161 of 2018 before the Debts Recovery Tribunal-I, Ahmedabad on August 30, 2018 against the measure taken by the applicant which is pending for adjudication and presently listed on November 22, 2018. 3. List of other documents attached to this application in order to prove the existence of financial debt, the amount and date of default : (1) Corporate debtor's board resolution dated March 29, 2013, accepting the terms and conditions of sanction and authorizing its director Mr. Champat R. Sanghvi to execute various security documents as stated in the resolution. (2) Letter dated March 29, 2013, from the corporate debtor regarding various undertakings to the applicant. (3) Letter to be obtained from the directors in cases where advances have been permitted to private limited/limited companies (AD-10). (4) Demand promissory note dated March 29, 2013, for ₹ 28,50,00,000. (5) Demand promissory note dated March 29, 2013, for ₹ 8,00,00,000. (6) Demand promissory note dated March 29, 2013, ₹ 1,11,00,000. (7) Dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarantors have failed to pay the outstanding amount to the petitioner-financial creditor. 8. It is further stated that the corporate debtor had submitted an one-time settlement (OTS) offer for ₹ 1,600 lakhs and the same could not be considered by the applicant and the same was communicated to the corporate debtor vide letter dated July 12, 2018. 9. It is further stated that total outstanding dues payable to the applicant by the corporate debtor in all the accounts is ₹ 85,71,54,265.28 (rupees eighty-five crores seventy one lakhs fifty four thousand two hundred sixty five and paise twenty eight only) inclusive of unpaid interest + penalty and other expenses up to September 30, 2018. 10. In the light of above stated statutory provisions and by perusal of the record, it goes to show that the present IB petition has been filed by the petitioner-financial creditor, through its authorized signatory, namely, Mr. Rajesh Kumar Mishra, Chief Manager, Union Bank of India, Asset Recovery Branch, Ahmedabad, he has filed an affidavit in support of the present petition. The relevant paragraphs of the said affidavit are stated as under : "5. I say that the corporate debtor, v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) L.G. of ₹ 100 lakhs, (iii) C.C.-Hyp. of ₹ 700 lakhs, (iv) PC/FDBP of ₹ 300 lakhs and (v) Term loan of ₹ 1285 lakhs aggregating total credit facilities for ₹ 31.10 crores for which the corporate debtor has executed required security documents in favour of the applicant, (hereinafter referred to as the credit facilities). 9. I say that the credit facilities were renewed vide FGMO Note No. FGMO/ADV/160 dated November 30, 2011 where the credit facilities were enhanced by increasing import LC from ₹ 725 lakhs to ₹ 1,685 lakhs along with interchangeability of ₹ 500 lakhs to CC(H) limit, LG at existing level of ₹ 100 lakhs, CC(H) limit was enhanced from ₹ 700 lakhs to ₹ 1550 lakhs, PC/PDBP limit of ₹ 300 lakhs, term loan at outstanding level 1064 lakhs and sanction of fresh term loan of ₹ 250 lakhs. 10. I say that subsequently, the corporate debtor faced trouble in production activities and liquidity crunch resulting into excess/over due in the accounts. Hence, the import L/C of ₹ 240 lakhs was devolved and paid by opening devolved L/C loan account. 11. I say that in September 2012, at the request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. Explanation.-For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant-financial creditor but to any other financial creditor of the corporate debtor. (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified ; (b) the name of the resolution professional proposed to act as an interim resolution professional ; and (c) any other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3). (5) Where the Adjudicating Authority is satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant portion of the aforesaid judgment of the hon'ble Supreme Court is being reproduced hereinbelow (page 87) : "The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an instalment amount. For the meaning of 'debt', we have to go to section 3(11), which in turn tells us that a debt means a liability of obligation in respect of a 'claim' and for the meaning of 'claim', we have to go back to section 3(6) which defines 'claim' to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (section 4). The corporate insolvency resolution process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. A distinction is made by the Code between debts owed to financial creditors and operational creditors. A financial creditor has been defined under section 5(7) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice from the Adjudicating Authority. Under sub-section (7), the Adjudicating Authority shall then communicate the order passed to the financial creditor and corporate debtor within seven days of admission or rejection of such application, as the case may be." 16. By placing reliance on the above stated decision of the hon'ble Supreme Court, the debt is well established and the default has been occurred because the outstanding loan is still unpaid. This satisfies the requirement of section 3(11) and (12) of the Insolvency and Bankruptcy Code for triggering the corporate insolvency resolution process in respect of the corporate debtor-company. 17. On perusal of the record, it is undisputedly established that the petitioner-financial creditor duly sanctioned and have disbursed various loan facilities to the corporate debtor and the same were availed of and utilized by it. The corporate debtor also confirmed its debts liability, through onetime settlement by offering ₹ 1,600 lakhs to the petitioner by its letter dated December 7, 2017 which could not be materialized. The corporate debtor was irregular in making repayment of its loan and the last payment was made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial sector regulator. (vi) The IRP so appointed shall make public announcement of corporate insolvency resolution process be made immediately as specified under section 13 of the Code and by calling for submissions of claim under section 15 of the Code. (vii) The interim resolution professional shall perform all his functions strictly which are contemplated, inter alia, by sections 17, 18, 20 and 21 of the Code. It is further made clear that all the personnel connected with the corporate debtor, its promoter or any other person associated with management of the corporate debtor are under legal obligation under section 19 of the Code extend every assistance and co-operation to the interim resolution professional. Where any personnel of the corporate debtor, its promoter or any other person required to assist or co-operate with IRP, does not assist or co-operate, IRP would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. (viii) The IRP shall be under duty to protect and preserve the value of the property of the "corporate debtor-company" and manage the operations of the corporate debtor-company as a going c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
