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TMI Blog2019 (9) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... documents confirming the existence of debt default and proposed a name of resolution professional to act as an interim resolution professional (IRP). This Adjudicating Authority is satisfied that,- (a) the corporate debtor availed of the loan/cash credit from the petitioner ; (b) existence of debt above rupees one lakh ; (c) debt is due ; (d) default has occurred on November 5, 2014 ; (e) the petition had been filed within the limitation period ; (f) copy of the application filed before the Tribunal has been sent to the corporate debtor and the application filed by the petitioner-bank under section 7 of the IBC is found to be complete for the purpose of initiation of the corporate insolvency resolution process against the corporate debtor-company. Hence, the present IB petition is admitted with certain directions/ observations - The date of admission of this petition is September 20, 2019. - C. P. (IB) No. 459/7/NCLT/AHM/2018. - - - Dated:- 20-9-2019 - Harihar Prakash Chaturvedi (Judicial Member) And Prasanta Kumar Mohanty (Technical Member) For the Applicant/Financial Creditor : Ketan M. Parikh For the Respondent/Corporate Debtor : Mohit Gupta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted by the applicant-bank are narrated as under : (I) A term loan and CC to the tune of ₹ 21 crores (rupees twenty one crores only), i. e., (a) term loan of ₹ 14 crores (rupees fourteen crores only) and (b) working capital-cash credit of ₹ 7 crores (rupees seven crores) were sanctioned by the applicant-bank vide sanction letter dated July 3, 2010 with certain terms and conditions including mortgage of land and building which was duly accepted/acknowledged by the corporate debtor (pages 82 to 88, paper book). Mortgage of the property has been created on November 18, 2010 a (pages 141 to 165 of the paper book). The same was disbursed on July 3, 2010. (II) Further, the loan/CC was enhanced to ₹ 26.76 crores (rupees twenty-six crores seventy six lakhs only) with certain terms and conditions which were duly accepted/acknowledged by the corporate debtor (pages 89 to 97 paper book) and the same was disbursed on September 5, 2011. (III) Further, the petitioner-bank at the request of the CD, the loan/ CC was enhanced/restructured to ₹ 34.69 crores (rupees thirty-four crores and sixty-nine lakhs only) vide their sanction letter dated December 23, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k has also filed Original Application No. 137 of 2017 against the corporate debtor and others, which is pending before the Debts Recovery Tribunal-I, Ahmedabad. The petitioner-bank has placed on record that the corporate debtor had submitted a revised one time settlement ( OTS ) proposal increasing the offer from ₹ 12 crores to ₹ 14.56 crores to the bank on June 1, 2016 which is stated to have not been accepted by the petitioner-bank. 11. The corporate debtor and others have filed Securitization Application No. 28 of 2016 against the petitioner/financial creditor before the Debts Recovery Tribunal-I, Ahmedabad challenging the measures taken by the authorized officer of the financial creditor under the SARFAESI Act. 12. In the present matter, this Tribunal, vide its order dated September 25, 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. In compliance to the same, the petitioner-bank has furnished the proof of sending notice to the corporate debtor on October 3, 2018 to remain present before this Tribunal on November 6, 2018. It is also stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IRP because the nature of remedy being sought for under the provisions of the I and B Code is remedy in rem in respect of the CD. 18. The petitioner-bank has suggested the name of insolvency professional to be appointed, if this petition is allowed and the proposed IRP has also given his affirmation/consent in writing, which is annexed with the present IB petition. 19. It is also found, that the petitioner-bank has submitted the documents duly executed by the corporate debtors and guarantors along with a certificate under the Bankers' Books Evidence Act, 1891, in support of their IB petition for initiation of CIRP. 19.1 The loans/CC were sanctioned and released by the petitioner-bank and the same were availed of by the CD, Radheshyam Agro Products P. Ltd. The charges have been filed by the CD with the Registrar of Companies in favour of the petitioner-bank on January 8, 2014. 19.2 The CD has defaulted in making repayment of loan/CC to the petitioner-bank and the date of default is January 5, 2014. The statement of accounts and the CIBIL reports submitted by the applicant-bank confirm the default committed by the corporate debtor. 19.3 The petitioner-bank has fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder sections 13 and 14 and the other relevant provisions of the Insolvency and Bankruptcy Code. 22. As per the provisions of sections 13 and 14 of the I and B Code on the date of commencement of insolvency, this Adjudicating Authority declares moratorium with effect from today for prohibiting all of the following, namely : I. (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, Tribunal, arbitration panel or other authority. (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein. (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002). (d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. II. The supply of essential goods or services to the corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While agreeing to and concurring with the findings given for admission of the present IB petition and to initiate the CIRP in respect of the corporate debtor-company, I wish to observe and express my view as under : With regard to the observation made in paragraph 24 of the judgment stating that, In order to have a resolution plan viable, feasible and implementation successful, in the era of . . . without any penal/overdue inter est. I would like to place reliance in a previous decision of this Bench of I. A. No. 431 of 2018 in the matter of Satish Kumar Gupta v. Essar Steel (India) Ltd. and others decided on March 8, 2019 whereby the resolution plan was approved with certain direction and condition and the same came to be approved also by the hon'ble National Company Law Appellate Tribunal in its decision of Standard Chartered Bank and Satish Kumar Gupta v. Essar Steel (India) Ltd. while deciding the above stated I. A. No. 431 of 2018 that this Bench placed reliance on a recent decision of the hon'ble Supreme Court in the matter of K. Sashidhar v. Indian Overseas Bank [2019] 213 Comp Cas 356 (SC) (C. A. No. 10673 of 2018 with C. A. Nos. 10719 and 10971 of 2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he action of liquidation process postulated in Chapter III of the I and B Code, is avoidable, only if approval of the resolution plan is by a vote of not less than 75 per cent. (as in October, 2017) of voting share of the financial creditors. Conversely, the legislative intent is to uphold the opinion or hypothesis of the minority dissenting financial creditors. That must prevail, if it is not less than the specified per cent. (25 per cent. in October, 2017 and now after the amendment with effect from June 6, 2018, 44 per cent.). The inevitable outcome of voting by not less than requisite per cent. of voting share of financial creditors to disapprove the proposed resolution plan, de jure, entails in its deemed rejection. Notably, the threshold of voting share of the dissenting financial creditors for rejecting the resolution plan is way below the simple majority mark, namely not less than 25 per cent. (and even after amendment with effect from June 6, 2018, 44 per cent.). Thus, the scrutiny of the resolution plan is required to pass through the litmus test of not less than requisite (75 per cent. or 66 per cent. as may be applicable) of voting share a strict regime. That means t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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