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TMI Blog2021 (6) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of declaration of NPA as 02.12.2016. In view of the quashing of the declaration of the account of the corporate debtor as NPA, the date of default now can be considered as date of default as recorded in the certificate of information utility services which is 03.09.2016. The application is filed on 12.03.2019, which is well within the period of limitation and not barred by law - The Applicant is entitled to claim its dues, establishing the default in payment of the financial debt beyond doubt. Application admitted - moratorium declared. - Company Petition No. IB-699/ND/2019 - - - Dated:- 24-5-2021 - Dr. Deepti Mukesh, Member (J) And Sumita Purkayastha, Member (T) For the Petitioner : Karan Aggarwal, Proxy Counsel for Vivek Malik For the Respondents : M. Dutta and Vivek Malik, Advocates ORDER Dr. Deepti Mukesh, Member (J) 1. The Present Application is filed under section 7 of Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC, 2016') read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') by Punjab National Bank, Asset Recovery Management Branch through it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,71,629.53/- as on 30.12.2016 with further interest with effect from 01.12.2016 at the contracted rate until payment in full within 60 days from the date of the notice. 8. The corporate debtor has filed a reply to the application and has asserted as follows: i. That the corporate debtor approached the Applicant for a renewal enhancement of their existing limits, which by letter dated 03.02.2015 was afforded by the Applicant on a commitment to renew their existing limits from ₹ 33.50 crores to ₹ 32.50 crores. But despite the aforesaid categorical explicit proposal, providing ₹ 32.50 crores, the Applicant permitted the corporate debtor to avail only a sum of ₹ 21.49 crores. The remaining sanctioned sum, was gradually denied to the corporate debtor. That such deduction of promised funds to the corporate debtor culminated in a series of adverse consequences. ii. That the action of the Applicant, declaring the corporate debtor non-performing asset on 02.12.2016 was illegal, unlawful and contrary to the RBI Guidelines. iii. That all the accounts were regular, healthy and within limits on the date of declaration of NPA 02.12.2016 or the period of 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the PC within due date. As a result, the account was classified as NPA after 90 days i.e. on 02.12.2016. As per RBI guidelines, if any account of the borrower becomes NPA, and the borrower is having more than one facility with bank, all the facilities granted by the bank has to be treated as NPA and not the particular facility or part or part thereof which has become irregular. Thus, the account of the Corporate Debtor was rightly classified as NPA. It may be pointed out that it is the system/computer which automatically classifies the account as NPA as per the norms of the RBI. ii. That the fund-based facilities was allowed to the full extent. Non-fund-based facilities were availed by the corporate debtor as and when required on need basis and the same was never denied to the corporate debtor, whenever asked for. It may be mentioned that out of the total sanction limit, non-fund-based facilities were to the extent of ₹ 9 lacs. The applicant further denies that the various accounts of the corporate debtor under the facilities were within the limits. In case, any of the account if brought within limit for two days or so, it will not convert the sub-standard account into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the law laid down by the Hon'ble Supreme Court in Innoventive Industries Ltd. is applicable for Section 10 also, wherein the Hon'ble Supreme Court observed as The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority . 25. Similarly, if any action has been taken by a 'Financial Creditor' under Section 13(4) of SARFAESI Act, 2002 against the Corporate Debtor or a suit is pending against Corporate 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. 12. The Supreme Court also in the matter 'Laxmi Pat Surana Vs. Union Bank of India, Anr.' dated 26.03.2021, in Civil Appeal No 2734 of 2020 has held that the plea with regard to the setting aside of NPA by DRT is irrelevant because Section 7 comes into play when the corporate debtor commits 'default'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. 16. The Applicant is entitled to claim its dues, establishing the default in payment of the financial debt beyond doubt. The application is complete hence in the light of above facts and records the present application is admitted. 17. The Applicant has proposed the name of Mr. Vijay Kumar Gupta as Insolvency Resolution Professional, who is be and hereby appointed as IRP of corporate debtor, having registration number IBBI/IPA-001/IP-P01387/2018-19/12134 ([email protected]) as the Interim Resolution Professional subject to the condition that no disciplinary proceedings are pending against such an IRP named who may act as an IRP in relation to the CIRP of the Respondent and specific consent is filed in Form 2 of Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rule, 2016 in relation to specifically the corporate debtor and the applicant herein and make disclosures as required under IBBI (insolvency Resolution Process for Corporate Persons) Regulations, 2016 within a period of one week from the date of this order. 18. We direct th ..... 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