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TMI Blog2020 (2) TMI 1585X X X X Extracts X X X X X X X X Extracts X X X X ..... akhs Ninety Thousand Four Hundred and Eighty-Eight Only). The date on which the default occurred is 30.06.2019. 3. The Corporate Debtor is a private limited company incorporated on 25-02-2008, having CIN No. U85110KL2008PLC021910. The registered office of the Corporate Debtor is stated to be at T. C.7/1407, SUT ROYAL HOSPITAL, Kochulloor, Trivandrum, Thiruvananthapuram 695 011. The Authorised Paid-up Share Capital of the Corporate Debtor Company is Rs. 400,00,00,00 and Rs. 19,29,65,600 respectively. Submissions by the Financial Creditor: 4. The counsel for the Financial Creditor/ Bank submitted that the Corporate Debtor had approached the Bank for availing credit facilities amounting to Rs. 16 Crores. Considering the request and the documents submitted by the Corporate Debtor, the Bank had sanctioned the credit facilities vide Sanction Letters dated 30-03-2015. The term loan was granted for purchase of equipment, machineries and other accessories with a tenure of 96 months including the initial holiday of 12 months. The sanction letter was amended vide letter dated 25-05-2015 and 08-07-2015 with respect to amending the securities to be furnished. The Corporate Debtor has accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of arrears. Pursuant to the decision taken in the said meeting the lenders on 15-06-2017 decided to give reasonable opportunity to the Corporate Debtor to settle the arrears of debt. 9. The Financial Creditor submitted that on 06-12-2018, 13-12-2019 and 11-01-2019, various communications were received from the Corporate Debtor admitting the liability and sought one-time settlement (O.T.S.) of credit facility and proposed a final offer of Rs. 8.15 Crore on 11-01-2019 as full and final settlement of all outstanding liabilities with the Financial Creditor. Thereafter, the same was approved by the Financial Creditor vide in- principle sanction letter dated 22-01-2019, which was accepted by the Corporate Debtor on 24-01-2019 and sought time till 20-02-2019 for payment of 5% of advance amount under the O.T.S Scheme. In terms of the O.T.S. Scheme, the liabilities of the Financial Creditor have to be repaid by the Corporate Debtor by 30-06-2019 but the Corporate Debtor failed to adhere to the terms of O.T.S Scheme and committed default in repayment of the loan. 10. The counsel for the Financial Creditor also stated that the bank has already filed OA. No. 156 of 2018 on 28-02-2018 before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkruptcy Code and the present application filed by the Bank is out of the purview of the Master Credit Agreement. Master Credit Agreement cannot be called as an agreement as there is only a unilateral undertaking from one side and there is no mutual agreement and the Hon'ble Supreme Court in Catena of decisions held that unilateral agreement cannot be termed as a contract between the parties and cannot be executed. 15. The Counsel for the Corporate Debtor also stated that this Tribunal has jurisdiction only regarding the loans which was availed by a Company whereas, one of the properties involved in the transaction is a trust property. The Corporate Debtor has also availed long-term funds of Rs. 31.22 crores from the Dr. K. N. Pai Trust. So, the assets of the Corporate Debtor include the funds invested by the Dr. K. N. Pai Trust and the Balance Sheet as on 31-03-2019 disclosed Rs. 28,63,69,018/- is due to the Dr. K. N. Pai Heart Foundation Trust. The counsel submitted that the NCLT proceedings can be initiated only against a Company and not against a Trust and its properties. 16. The Corporate Debtor submitted that the interest is debited from the accounts which are declared as N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dispute is more than one lakh i.e. Rs. 14,24,90,488/- and the application is complete. Therefore, the application is liable to be admitted. The Insolvency and Bankruptcy Code, 2016 entails only a summary adjudication by the Adjudicating Authority wherein to admit an application, it needs to be satisfied only with regard to the existence of a default and ensure that the application is complete and no disciplinary proceedings are pending against the proposed resolution professional. It is submitted that the Adjudicating Authority is not required to look into any other criteria for admission of the application. Hence, it is submitted that the averments made by the Corporate Debtor in its reply are not relevant and not necessary to be looked into for the purpose of admission of the application. 22. The counsel for the Financial Creditor stated that the Senior Manager of the Financial Creditor had signed the application as an authorised person of the Financial Creditor and a specific authorisation letter to file insolvency application before this Bench has been given in favour of him and is already filed along with the application. 23. The counsel for the Financial Creditor submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan from the Financial Creditor and also executed relevant documents in connection with the said loan. On 11-01-2019, the Corporate Debtor made a final offer of Rs. 8.15 Crores for full and final settlement of all outstanding liabilities with the Financial Creditor. The same was approved vide sanction letter dated 22-01-2019 which was accepted by the Corporate Debtor on 24-01-2019. Further the Corporate Debtor also sought time till 20-02-2019 for payment of 5% of advancement and the OTS Scheme but failed to adhere the terms and conditions of the OTS Scheme and committed default in repayment of loan. 29. The submissions made by the Corporate Debtor are as follows: i. That the applicant was not properly authorized to file this application. ii. Capitalization of penal interest by the Financial Creditor. iii. Master Credit Agreement is an unilateral agreement and cannot be termed as contract between the parties, iv. The above agreement do not merit any consideration and offered only as an excuse to delay the CIRP process. Further the submission made by the learned counsel for the Corporate Debtor that the NCLT proceedings cannot be initiated against a trust and its properti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case records. This application is filed by the Financial Creditor under the Insolvency and Bankruptcy Code,2016 for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor to protect the interests of the stakeholders. Accordingly, the application IBA/51/KOB/2019 has been admitted under CIRP and the following order has been passed. 35. 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 shall be applicable by prohibiting institution of any suit before a Court of Law, transferring/encumbering any of the assets of the Debtor etc. 36. The Financial Creditor has suggested the name of Mr. Raju Palanilkunnathil Kesavan, IBBI/IPA-001/IPP00801/2017-2018/11356, email id: [email protected], residing at CGNRA-9(33/1183A), Kodamassery Line, Chalikkavattom, Vennala P. O., Kochi, Ernakulam, Kerala, 676552 for appointment as Interim Resolution Professional (IRP). He has filed a declaration in Form-2 (As per Rule 9 sub-rule (1) of the I & B (Application to Adjudicating Authority) Rules, 2016) along with Authorization for Assignment (AFA) issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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