9911796707
TMI Blog2019 (7) TMI 1720X X X X Extracts X X X X X X X X Extracts X X X X ..... HELD THAT:- There is no dispute that the loan account was restructured on 10.06.2013 and was secured by way of mortgage. Under Article 62 of the Limitation Act, when mortgage is created over immovable property and offered as collateral security for the loan, the limitation period is 12 years. Even otherwise it is seen that the Scheme of Demerger was approved on 27.11.2017 inter alia fixing the liability of respondent pertaining to Power Project'. It creates fresh period of limitation from 27.11.2017. In view of the continuous cause of action and also in view of Article 62 of the Limitation Act, the present claim is not barred by limitation. In the facts it is seen that the applicant bank clearly comes within the definition of Financial Creditor. The material placed on record further confirms that applicant financial creditor had disbursed various loan facilities to the respondent corporate debtor and the respondent has availed the loan and committed default in repayment of the relevant outstanding financial debt. On a bare perusal of Form - I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete and there is no infirmity in the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant that the applicant bank had entered into a consortium Agreement dated 21.11.2009 with respondent company, M/s. Abhinav Steels and Power Limited for an overall limit of ₹ 125,00,00,000/-, where the share of the applicant Financial Creditor was ₹ 31 Crores. The Consortium (referred to as PNB Consortium) consisted of Punjab National Bank, Oriental Bank of Commerce and Central Bank of India. 6. Subsequently applicant financial creditor approved enhanced sanction of Fund Based and Non-Fund Based Limits, comprising of - Total Cash Credit sanctioned to the tune of ₹ 14 Crores; total Term Loan sanctioned to the tune of ₹ 49,75,00,000/-and total Working Capital (non Fund based) sanctioned for ₹ 4,50,00,000/-, vide Sanction Letter dated 14.09.2012. 7. Thereafter, as the borrower M/s. Abhinav Steel and Power Limited was unable to make repayment, on its request a Master Restructuring Agreement as well as the Working Capital Consortium/Agreement were entered into between the Corporate Debtor and consortium Members on 16.05.2013, wherein it was agreed that the account of the borrower, being in default, shall be restructured. 8. Subsequently, the acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent corporate debtor. The 'Power Division' accordingly continued to vest with the Corporate Debtor itself, along with assets and liabilities arising therefrom. 14. Therefore, as per the sanctioned Scheme the 'Power Division' of the Corporate Debtor continued to remain with the respondent Corporate Debtor and all assets and liabilities arising only from the 'Power Division' remained vested with the respondent. 15. It is further contended that by means of the present application the amount of default claimed by the applicant bank, pertains only and only to that part of default arising from the credit facilities sanctioned for 'Power Division' which continued to remain with the respondent company. 16. It is submitted that the applicant bank has sanctioned various financial facilities aggregating to ₹ 88.4 Crores, out of which facilities pertaining to 'Power Division' are set out at part IV of the application as below: Sl. No. Date of Sanction Nature of Facility Amount Sanctioned 1. 30.09.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f IRP. An objection has also been raised that there is no proof of default and there is no statement of account in the name of 'Power Division'. It is also the case of the respondent that the applicant is not a financial creditor in respect of the corporate debtor. 21. We have heard the learned counsels for the parties and have perused the case records. 22. The various objections raised by the respondent corporate debtor are discussed below. 23. Respondent corporate debtor has raised halfhearted objection that the applicant bank is not a financial creditor in respect of the respondent company. 24. The expressions Financial Creditor and Financial debt have been defined in Section 5 (7) and 5 (8) of the Code and very precisely Financial debt is a debt along with interest, if any, which is disbursed against the consideration for time value of money. 25. In the present case applicant bank had sanctioned and disbursed the term loan amount recoverable with applicable interest by entering in to loan agreements with the respondent corporate debtor. Even after Demerger the 'Power Division' continued to remain with the respondent Corporate Debtor, whose l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed information, documents and records as prescribed under the Rules. 30. The applicant bank inert-alia has annexed to the application detail particulars of 'financial debt' including documents, records and evidence of default as required under subsection 3 (a) of Section 7 of the Code. It is reiterated that the Form-1 filed in the present case under Section 7 of the Code read with Rule 4 of the Rules, shows that the Form is complete in all respect and there is no infirmity in the same. 31. As regards dispute on the appointment of IRP and allegation on incomplete Form-2; it is pertinent to refer to sub-section (3) (b) of Section 7 of the Code which requires the applicant financial creditor alone to furnish the name of an Interim Resolution Professional. In compliance thereof the applicant has proposed the name of Mr. Shravan Kumar Vishnoi, for appointment as Interim Resolution Professional having registration number IBBI / IPA-002 / IP-P00040/ 2016-17 / 10079 resident of 406, 407, Shopping Square - II, Sector - D, Sushant Golf City, Ansal API, Lucknow - 226030. Mr. Shravan Kumar Vishnoi has agreed to accept the appointment as the interim resolution professional and has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise it is seen that the Scheme of Demerger was approved on 27.11.2017 inter alia fixing the liability of respondent pertaining to Power Project'. It creates fresh period of limitation from 27.11.2017. In view of the continuous cause of action and also in view of Article 62 of the Limitation Act, the present claim is not barred by limitation. 36. Respondent has simply disputed the claim without pointing out as to how default as claimed has not occurred. 37. Even if a claim is disputed but if the amount payable is more than ₹ 1 Lakh (in the present case more than 100 Crores), the application under Section 7 of the Code is maintainable. 38. Applicant bank has filed the relevant statement of accounts duly certified in accordance with Bankers' Books Evidence Act, 1891 as per the requirement of Form 1-part V column 7 of the application. Certified copy of statement of accounts pertaining to relevant loan facilities kept during the course of banking business basing on which the claim has been raised can be termed as sufficient evidence of the financial debt. 39. The applicant bank has also furnished copy of sanction letters, loan agreements executed from time to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng pending against the proposed IRP. We are satisfied that the present application is complete in all respect and there has been default in payment of the financial debt. 45. As a sequel to the above discussion and in terms of Section 7 (5) (a) of the Code, the present application is admitted. 46. Mr. Shravan Kumar Vishnoi having registration number IBBI / IPA-002 / IP-P00040/ 2016-17 / 10079 resident of 406, 407, Shopping Square - II, Sector - D, Sushant Golf City, Ansal API, Lucknow - 226030 is appointed as an Interim Resolution Professional. 47. We direct the Financial Creditor to deposit a sum of ₹ 1 Lac with the Interim Resolution Professional namely Mr. Shravan Kumar Vishnoi to meet out the expenses to perform the functions assigned to him in 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 said advance amount however be subject to adjustment towards Resolution Process cost as per rules and shall be paid back to the applicant Financial Creditor. 48. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the day to day affairs of the 'Corporate Debtor'. In case there is any violation committed by the ex-management or any tainted/illegal transaction by ex-directors or anyone else, the Interim Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional shall be under duty to protect and preserve the value of the property of the 'Corporate Debtor' as a part of its obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code, Rules and Regulations. 52. The office is directed to communicate a copy of the order to the Financial Creditor, the Corporate Debtor, the Interim Resolution Professional and the Registrar of Companies, NCT of Delhi Haryana at the earliest possible but not later than seven days from today. The Registrar of Companies shall update its website by updating th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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