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TMI Blog2020 (6) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... creditor" on August 2, 2019 by invoking the provisions of section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter as the Code) against "E and G Global Estates Ltd." (hereinafter as the "corporate debtor"). The registered address of the corporate debtor is stated to be 6, New Shivsagar Society Gangapur College Link Road, Thatte Nagar, Nashik, Maharashtra-422 005. 2. In the requisite form, under the head "particulars of financial debt" the total amount of debt granted is stated to be Rs. 15,44,00,000 and the amount claimed to be in default is Rs. 3,85,15,033. The date of default is stated to be August 10, 2018. The loan account of the corporate debtor was declared as non-performing asset on November 8, 2018. Brief history of the case in C. P. No. 2995/IBC/MB/2019 3. The financial creditor has sanctioned certain financial facilities to the corporate debtor vide letter of intent dated January 22, 2016 sanctioning the term loan/financial assistance to the tune of Rs. 15,44,00,000 comprising of term loan and soft loan. The loan amount was secured by hypothecation of machinery and equipment, etc. The loan is secured by the additional indenture of mortgage dated February 2, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rward to settle the dues of the corporate debtor. The draft consent terms were also filed before the Bench by the intervener applicant for the corporate debtor but the intervener applicant as well as the corporate debtor never honoured it. Submissions by the corporate debtor 12. The corporate debtor has nothing to say in its defence except the fact that there is possibility of amicable settlement between the parties. M. A. No. 3182 of 2019 13. This M. A. No. 3182 of 2019 has been filed on September 19, 2019 by M/s. G. S. Consto and Infra P. Ltd. and its promoters against the corporate debtor in C. P. No. 2995 of 2019. This miscellaneous application has been filed mainly with following two prayers : (a) The order dated September 6, 2019 passed by this Bench in Company Petition No. 2995 of 2019 be recalled. (b) The applicant may be heard in C. P. No. 2995 of 2019 before taking a view on the admission or otherwise of the petition. 14. The main contention of the applicant in the MA is as follows : Applicant No. 1 is a company engaged in business of construction and applicants Nos. 2 and 3 are owners of applicant No. 1-company. The owners of the applicant-company are also dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant paragraph as appearing in the agreement signed between the corporate debtor and SIDBI is reproduced below : Clause No. As per letter of Intent No. 288/DCS-E and G (SMILE) dated 22.01.2016 Present Modification Primary security S. No. (i). First charge by way of equitable mortgage in favour of SIDBI of all immovable properties of the borrower, both present and future, situate at Kharoli Village, Trimbakeshwar Taluka, Nashik District bearing GAT Nos. 65, 66/1&2, 86, 93, 94, 101 and 104 (Part) admeasuring 52539 sq. mtrs. out of 53529 sq. mtrs. owned by E and G Global Estates Ltd., (out of the total layout of 67,470 sq. mtrs.) together with all the buildings and structure thereon that includes. First charge by way of simple mortgage in favour of SIDBI of all immovable properties of the borrower, both present and future, situate at Kharoli Village, Trimbakeshwar Taluka, Nashik District bearing GAT Nos. 65, 66/1&2, 86, 93, 94, 101 and 104 (part) admeasuring 52469 sq. mtrs. out of 53459 sq. mtrs. owned by E and G Global Estates Ltd., (out of the total layout of 67470 sq. mtrs.) together with all the buildings and structure thereon that includes. (a) A ty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble properties of the corporate debtor, both present and future was mortgaged in favour of SIDBI. 17. Even while signing the memorandum of understanding, the applicants were fully aware that this memorandum of understanding, as far as transfer of share, etc., is concerned, is of no significance as the memorandum of understanding had a condition precedent which is clearly enumerated at paragraph 4 of the memorandum of understanding attached with this application. 18. Therefore, this whole memorandum of understanding for transfer of shares were to come into effect only after written consent of SIDBI. Since this written consent of SIDBI which holds first charge on moveable and immovable property was never given, therefore, this memorandum of understanding is of no significance and does not hold any legal ground and, therefore, cannot be considered under any circumstances as a binding document. In any case, legally, any memorandum of understanding is a mere understanding and does not hold much legal ground. 19. It should not be lost sight off that the owners of the applicant-company are also the directors in the corporate debtor's-company as is evident from the submissions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Counsel for the applicant in the intervening application is also present. It is submitted that the intervening applicant is ready to settle the due of the bank which is around Rs. 3,73,15,033. Counsel for the petitioner-bank submits that the petitioner wants immediate payment of Rs. 3,73,15,033, else, the petition be heard and orders may be passed. Matter adjourned to 26-11-2019. 5. 26-11-2019 M. A. No. 3182 of 2019 At the request of counsel for the respondent in the intervention application and for filing the consent terms, list this matter on 9-12-2019. 6. 9-12-2019 M. A. No. 3182 of 2019 Counsel for the petitioner is absent. Counsel for the corporate debtor and intervener present. Listing of the matter adjourned to 16-12-2019. 7. 16-12-2019 M. A. No. 3182 of 2019 It is reported that the draft consent terms are ready, but it has to be decided by the legal team of the petitioner. Matter adjourned to 19-12-2019. 8. 8-1-2020 M. A. No. 3182 of 2019 The petitioner insists for the admission of the petition unless the overdue amount of Rs. 2.75 crores is paid by the corporate debtor immediately. &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., M/s. E and G Global Estates Ltd., had undertaken before this Bench to pay the agreed settlement amount to financial creditor, i. e., SIDBI, a total sum of Rs. 3.73 crores. This matter, as is evident from the above chronology of events in M. A. No. 3182 of 2019, continued to be heard by this Bench after the draft settlement on several occasions. However, the applicant in M. A. No. 3182 of 2019 never paid the amount as per the draft settlement agreement. It is for this reason that when this M. A. No. 3182 of 2019 was heard on December 19, 2019, the annual general meeting of the petitioner-bank became so exasperated that he insisted before the Bench to admit the petition otherwise, he mentioned, the overdue amount be paid immediately to the bank. However, counsel for the intervening applicant as well as that of the corporate debtor continued defaulting on the draft settlement agreement. The Bench finally heard the petitioner and counsel in M. A. No. 3182 of 2019 and reserved its order in M. A. No. 3182 of 2019 and also on the admission of the petition. (C) In view of the above, it becomes very clear that the orders dated September 6, 2019 regarding admission of C. P. No. 2995 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the conscientious view that this petition deserves "admission". 27. Further that, we have also perused form 2, i. e., written consent of the proposed interim resolution professional submitted along with this application/petition by the financial creditor and there is nothing on record which proves that any disciplinary action is pending against the said proposed interim resolution professional. 28. The financial creditor has proposed the name of insolvency professional. The IRP proposed by the financial creditor, Mr. Gajesh Labhchand Jain, having Registration No. IBBI/IPA-001/IP-P01697/2019-2020/12588, is hereby appointed as the interim resolution professional to conduct the insolvency resolution process. 29. Having admitted the petition/application, the provisions of moratorium as prescribed under section 14 of the Code shall be operative henceforth with effect from the date of order, and shall be applicable by prohibiting institution of any suit before a court of law, transferring/encumbering any of the assets of the debtor, etc. However, the supply of essential goods or services to the "corporate debtor" shall not be terminated during moratorium period. It shall be effe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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