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TMI Blog2019 (1) TMI 1889X X X X Extracts X X X X X X X X Extracts X X X X ..... igned the impugned loans disbursed by the assignor to the Corporate Debtor. 3. The Allahabad Bank had granted a Term Loan of Rs.25,00,00,000/- and a Cash Credit Facility of Rs.15,00,00,000/- vide its sanction letter dated 27.11.2009. 4. The Allahabad Bank entered into an Interse Agreement dated 12.03.2010 with several other banks to create a consortium of lender banks called the SBI Consortium. The said agreement recognised State Bank of India as Lead Bank of the SBI Consortium. 5. The said loan was secured by a mortgage, hypothecation and personal as well as corporate guarantee. 6. The Petitioner has annexed to the Petition a copy of Memorandum of Entry for extension of Mortgage/Charge dated 12.03.2010, Memorandum of Entry for extension of Mortgage/Charge for guarantor's properties dated 12.03.2010, Declaration and Confirmation of Deposit of Title Deeds for creation of Joint Mortgage by Corporate Debtor dated 12.03.2010, Declaration and Confirmation of Deposit of Title Deeds for creation of Joint Mortgage by Maxx Media Technologies Private Limited dated 12.03.2010, Memorandum of Entry for extension of Mortgage/Charge dated 06.09.2011, Memorandum of Entry for extension of Mortg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 10. The Petitioner sent a letter dated 20.02.2017 to the Corporate Debtor mentioning the outstanding amount towards Allahabad Bank along with other Banks and demanding the settlement of its dues, failing which the Petitioner will be filing proceedings under IBC. 11. As per the computation of dues attached with the Petition, the default under the Term Loan stands at Rs.41,70,51,000/-and under Cash Credit Facility at Rs.32,03,84,980/- as on 04.05.2018. 12. The Petitioner has annexed the Bank statement of the Corporate Debtor along with Certificate as per the provisions of section 2A & 2(8) of Bankers Book of Evidence Act showing the disbursement of debt. 13. The Corporate Debtor has filed its Affidavit in Reply stating that the Petition is not maintainable and should be rejected on the grounds; firstly, that the original creditor, i.e. Allahabad Bank has assigned the debt to the Petitioner through an assignment agreement dated 01.09.2015 for a total sale consideration of Rs.4,00,00,000/- and thus it cannot claim more than the amount for which the Debt has been assigned to it; Secondly, the Corporate Debtor has preferred a substantive petition under section 17(1) of the Secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor under Section 19 of DRT Act, 1993 before a Debt Recovery Tribunal or appeal pending before the Debt Recovery Appellate Tribunal cannot be a ground to reject an application under Section 10, if the application is complete." 16. The Petitioner has submitted that the Interse Agreement between the banks does not preclude the Petitioner from filing the present Petition in respect of the debt arising out of individual facilities granted to the Corporate Debtor. The Petitioner has placed reliance on the order passed by the Hon'ble NCLT, Principal Bench, New Delhi in the matter of Asset Reconstruction Company (India) Limited v. White Metal Limited in (IB)-160(PB)/2018 on 13.06.2018. The relevant portion of the order is reproduced below: "...Section 7 of the Code itself shows that a financial creditor either by itself or jointly with other financial creditors may file on application for initiating Corporate Insolvency Resolution Process against a Corporate Debtor when a default has occurred. Therefore, there is no obligation to join the consortium of Banks. It is pertinent to state here that the Indian Overseas Bank even individually has granted several loan facilities to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition. 19. The Petitioner has annexed a statement showing the calculation of the amount claimed to be in default as on 04.05.2018. The Petitioner has also annexed the updated documents evidencing the sanction of the financial debt and supporting instruments evidencing the creation of security for the same debt. 20. The present Petition is regarding repayment of the money secured by a mortgage and charge upon the immovable property. The limitation period for such Petitions is prescribed as Twelve years from the time when the amount becomes due. Thus, the Petition is well within the limitation prescribed. The contention of the corporate debtor that the Petition is beyond the prescribed period of limitation is not tenable. 21. The Petitioner has also annexed the Bank statement of the Corporate Debtor, along with the Certificate as per the provisions of section 2A & 2(8) of Bankers Book of Evidence Act, showing the disbursement of debt and the unpaid balance in the account. 22. The records of the Corporate Debtor's account in the Books of the Lender Bank along with, among other things, the letter of the Corporate Debtor dated 15.02.2015, mentioning that a strategic investor is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exist or is not in default, which is not the case here, a challenge to the statement of the account being incorrect, cannot be a ground for rejection of the Petition. 26. As regards the Corporate Debtor's defence that since the Lead Bank is SBI, which was only authorised to initiate proceedings under IBC cannot be accepted given the definition of 'Financial Creditor' under section 5(7) of I&B Code. This contention finds support from the decision of Hon'ble Principal Bench of NCLT in White Metal Limited case (supra.) that a Financial Creditor has the right to initiate a proceeding under section 7 of IBC individually or jointly on behalf of other 'financial creditors'. Also, the fact that the assignor has also legally assigned the impugned loans individually to the Petitioner makes the Petitioner all the more eligible to file a petition under section 7 of I&B Code. 27. By the above discussion, we are of the considered view that the respondent's contentions raised in the Affidavit in reply are short of any merit. The existence of debt is clear from Loan agreements and various documents relating mortgage deed, hypothecation deed, certificate of creation of charge, guarantee agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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