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TMI Blog2018 (8) TMI 2056X X X X Extracts X X X X X X X X Extracts X X X X ..... s it is noticed that admittedly the Debtor has availed the Loan Facilities from the Financial Creditor however, the Debtor has defaulted in making the payment - admittedly the modalities for the restructuring of Debt had been agreed between the consortium of Banks and the Debtor Company. However there is nothing on record which will prove that the modalities agreements were acted upon / implemented by the Financial Creditors. Consequently any of one from the Consortium had not enhanced the facilities of the Debtor. As the agreements were not acted upon the amount of Debt has never been restructured and therefore there is an existence of debt and the Debtor Company is liable to make the payment to the Financial Creditor - there is no disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Doshion Water Solutions Private Limited (hereinafter as Debtor) having Registered office at, Office No. 3, 2thFloor, A - Wing. Godrej Coliseum, Eastern Express Highway, Behind Everard Nagar, Sion (W), Mumbai, Maharashtra 400022. 3. In the requisite Form, under the head Particulars of Financial Debt the total amount of Debt in default is stated as 2 133,69,60,093/- as on 30.09.2017 as summarised below : * Bank Guarantees worth ₹ 9,06,34,033.00 (Rupees Nine Crores Six Lakhs ThirtyFour Thousand and Thirty-Three Only) have been issued and are outstanding as on September 30, 2017. 4. Brief Background : 4.1. The Corporate Debtor has availed the loan facilities from the Financial Creditor as per following table givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the Debtor on 06.04.2016 for repayment of Debts. It is also stated that the Debtor vide its letter dated 16.05.2016 had replied to the said notice stating therein that the Debtor may be invited by the Financial Creditor to negotiate the terms of settlement. Copies of the notice and reply are annexed with the Petition / Application. 5.5. It is further stated that thereafter there is nothing much happened progressively. despite of the Joint Lenders Forum meeting dated 20.07.2016. It is stated that the terms and conditions decided in the JLF meeting were never been executed by the Financial Creditor or by any of the Banks. 5.6. It is also stated that the Debtor vide its letter dated 07.03.2017 has acknowledged its liability towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore as on date there is Debt lying with the Debtor in terms of S. 5 (8) of the Code and hence this Petition / Application deserves to be Admitted and the CIRP may be commenced upon the Debtor. 6. Submissions by the Corporate Debtor : 6.1. The Learned Counsel for the Corporate Debtor firstly has raised the issue of the maintainability of this Application under provisions of the Code. 6.1. It is submitted that on 16.01.2014 the Financial Creditor along with other consortium banker had agreed to restructure the loan and provide enhancement facilities and the modalities were finalized. It is also stated that pursuant to this restructuring the Debtor has to open a TRA Account for their day to day business. Copy of the letter to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further it is noteworthy to place certain facts on record. During the hearing it is noticed that, in recent past the Hon ble Bombay High Court had passed an order for winding-up against the Debtor Company U/s. 433 (e) and 434 of the Companies Act, 1956 vide an Order dated 16.03.2018. Thereafter an improvement has occurred and the Hon ble Bombay High Court vide an Order dated 09.05.2018 has recorded that the Order of 16.03.2018 stands set aside and the Debtor Company shall move an application for discharge of Official Liquidator. 7.3. The Bench has gone through both the abovementioned orders and it transpires that initially the Hon ble Bombay High Court had ordered for Winding-up of the Debtor Company and the said Order has been set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to conclusion that, the nature of Debt is a Financial Debt as defined under section 5 (8) of the Code. Further, admittedly there is a Default as defined under section 3 (12) of the Code on the part of the Corporate Debtor. 7.9. On the basis of the evidences on record the Financial Creditor has established that the loan was sanctioned and duly disbursed to the Corporate Debtor but there is non-payment of the Balance Debt on the part of the Corporate Debtor. 7.10. As a consequence, keeping admitted facts in mind that the Financial Creditor had not received the outstanding Debt from the Corporate Debtor and that the formalities as prescribed under the Code have been completed by the Financial Creditor we are of the conscientious ..... X X X X Extracts X X X X X X X X Extracts X X X X
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