9911796707
TMI Blog2021 (2) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... ate constituted on 05.01.1994 under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1980 whereas the corporate debtor is a company incorporated on 23.11.1983 bearing CIN L63090MH1983PLC031418 and having nominal share capital of Rs. 2,35,00,00,000/- and paid up share capital of Rs. 30,24,59,335/-. 3. Mercator Limited, the Corporate Debtor herein, is a company registerd under the Companies Act, 1956, having its registered office at the address mentioned in the cause-title above. ICICI bank, the Applicant herein has, from time-to-time, extended to the Corporate Debtor multiple loan facilities of different nature and for different purposes. The Corporate Debtor has currently defaulted on four facilities sanctioned by the Applicant between 2014 to 2016 aggregating to USD 47 milion. 4. The present insolvency application is being filed only on the basis of default under two such facilities, extended on 15 December 2016 (Facility III) and 30 December 2016 (Facility IV), aggregating to USD 12 million. Nothwithstanding the above, the Applicant expressly reserves its right to avail any remedy available in law to recover amounts due and payable under the other facilites ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri passu charge over the cash flows from the Vessels in vaour of the Applicant. 8. The Coporate Debtor was irregular in servicing of its debt obligations under Facility III and IV from 28 February 2019 onwards and has continued to default in repayments. 9. As a result of the continuaou default on part of the Corporate Debtor, the account of the Corporate Debtor with the Applicant was classified as a Non-Performing Asset with effect from 21 may 2019. 10. Subsequently, as a result of the persistent and continuing defaults in payment of both facilities advanced to the Corporate Debntor, which constituted an event of default under Facility III and Facility IV Agreement, the Applicant issued a notice of recall dated 10 October 2019 to the Corporate Debtor, recalling both Facility III and IV availed by the Corporate Debtor from the Applicant. Hence, the Applicant, vide the Recall Notice declared all amounts under Facility III and IV due and payable and called upon the Corporate Debtor to pay to the Applicant the outstanding principal amount together with interest and other amounts payable under Facility III and IV aggregating to INR 707,251,072, together with further interest, amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tridevi Prem; (ii) Darshani Prem; (iii) Uma Prem; and (iv) Vivek Prem. The Corporate Debtor due to its financial constraints requested all its lenders (including the Petitioner) for financial assistance towards capital expenditure for maintaining the said vessels including the insurance in respect of the said vessels. However, the Petitioner refused to provide any financial assistance. Pursuant thereto, by a letter dated September 7 2019, the Corporate Debtor informed the Petitioner that the Corporate Debtor did not have sufficient funds to manage the said four vessels and the said vessels ought to be taken charge of by the Petitioner and the Petitioner ought to realize its dues to the extent possible from the said vessels. The petitioner was well informed that the vessels which were charged to the Petitioner were being used or remained idle without any insurance cover and were in a precarious condition. Thus, it was only prudent to have realized the value from the said vessels at the earliest and delaying the same would only lead to depreciation in the value of the vessels. However, the Petitioner failed to take any cogent steps towards it. iii. In these circumstances, one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Mercator Petroleum Limited (MPL), a subsidiary of the Corporate Debtor. Through the Petitioner sought reliefs in respect of CB-9, the Petitioner did not implead MPL in the said Misc. Application. vi. The Petitioner in the said Misc. Application alleged that CB-9 was a crucial asset of the Corporate Debtor and alienation of such asset would significantly hamper the chances of the successful resolution of insolvency of the Corporate Debtor, if the above Company Petition was admitted by this Tribunal. This was the entire basis of the said Misc. Application. However, as stated above, the alienation of CB-9 (or prevention thereof) would have no impact on the Corporate Insolvency Resolution Process of the Corporate Debtor as CB-9 is not an asset of the Corporate Debtor. Further, the respondent contends that the petitioner filed the said Misc. Application seeking interim reliefs in the above Company petition which is filed to initiate the Corporate Insolvency Resolution Process in respect of the Corporate Debtor. However, it is pertinent to note that the petitioner has sought reliefs in respect of assets of MPL, which reliefs have no nexus to the relief in the above Company petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor's continued prodding of the Petitioner in respect of the same is also evident from the conversation between the representatives of the Petitioner and the Corporate Debtor over whatsapp. x. The respondent contends that the petitioner has (i) failed to take any effective steps to sell its secured assets to recover its outstanding dues; (ii) permitted its secured assets to devalue; and (iii) allowed the liabilities to mount on the Corporate Debtor through such secured assets. Now, by the above petition and Misc. Application No. 151 of 2020, the Petitioner is seeking (a) to restrain other secured creditors from enforcing their security interest; (b) to restrain the sale of assets of MPL when the Petitioner has no right in such assets whatsoever; and (c) thus, further devalue the assets of the Corporate Debtor and its subsidiaries. 16. The Respondent sought for dismissal of the above company petition on the ground stated above. 17. The respondent is resisting the admission of the company petition mainly on the following grounds: i. That financial creditor has failed to discharge its obligation as a lender in protecting the security interest of the mortgaged dredg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding crew wages and port dues etc. 20. He also invited the attention of this tribunal to the email dated 08.08.2019 sent by the bank to the corporate debtor intimating about receipt of 3 quotations for the 3 dredgers and requested the corporate debtor to share the maritime liabilities on the said dredgers. Thus, it is the submission of the counsel appearing for the financial creditor that the subject matter of the dredgers could not be disposed of due to the non-cooperation of corporate debtor and not on account of any delay on the part of the financial creditor. 21. The petitioner submits that the subject matter of the vessels could not be disposed of due to the dues accumulated on the vessels due to mis-management on the part of the Corporate Debtor and the applicant would not be able to recover any substantial amounts even after giving up its status as a secured creditor of the Corporate Debtor. The petitioner further submits that the lenders liability as defined and discussed in Mardia Chemical Vs. Union of India is while deciding the liability of lenders under the SURFAESI Act which is a recovery legislation for lenders to recover their dues unlike the IBC which is a benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IBBI/IPA-001/IP-P00999/2017-2018/11646 having office at 22, Dignity Apartments, Bon Bon Lane, 7 Bungalows, Versova, Andheri (W), Mumbai 400053 as the Interim Resolution Professional to carry out the functions as mentioned under the Insolvency & Bankruptcy Code. (c) The Financial Creditor shall deposit an amount of Rs. 5 Lakh towards the initial CIRP cost by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. (d) That this Bench hereby prohibits 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; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the recovery of any property ..... X X X X Extracts X X X X X X X X Extracts X X X X
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