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TMI Blog2019 (3) TMI 1940X X X X Extracts X X X X X X X X Extracts X X X X ..... anted is Rs.205 Crores and the total amount claimed to be in default is stated to be Rs.226,50,22,144/- as on 31.12.2017. The Loan Account of the Corporate Debtor with Bank of India was declared NPA on 31.03.2016. A) Brief History of the case: 3. The Financial Creditor is the Lead Bank of the Consortium of Banks (hereinafter as 'Bank of India Consortium') which granted loans to the tune of Rs.205 Crores to the Corporate Debtor on various dates vide various Sanction Letters. Various banks are involved in granting loans to the Corporate Debtor vide various Consortium Agreements entered on different dates, as annexed in the petition. The latest sanction of the amount was done on 26.06.2015. The loans were granted on various securities, 1st pari passu charge by way of hypothecation of (a) stocks, and (b) receivables & other current assets being the principle security. The stocks hypothecated amounted to Rs.959.04 Crores as per stock statement of 30.04.2016 and receivables amounted to Rs.2246.76 Crores as per Book Debts Statement on 30.04.2016. 4. Further, the loans were secured by various collateral securities as well. Various immovable properties of the Corporate Debtor were mortga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporate Debtor has not denied the receipt of Financial Facilities referred hereinabove. The Petitioner further argues that the petition is complete in all respects, the Corporate Debtor is not making the payment and all the procedural formalities have been complied with, this Petition/Application may be Admitted for the initiation of the CIRP. C) Submissions by the Corporate Debtor : 8. The case of the Corporate Debtor is that the Financial Creditor has maliciously moved NCLT for the alleged default. The Corporate Debtor contends that the Company's stock (Diamonds), which was kept as security with the bank has been misappropriated/lost due to bank's fraud/ gross negligence. Therefore, the Financial Creditor along with other members of the consortium is jointly and severally liable to pay an amount of Rs.1561.87 Crores to the Corporate Debtor, against the value of the Company' stock. Moreover, the Corporate Debtor claims Rs.5000 Crores as damages for loss of business, profit and goodwill. 9. The Corporate Debtor has filed a Counter Claim (L) No. 793/2017 against inter alia Bank of India, before DRT for recovery of the aforesaid amount in Original Application No. 407/2016. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Police, Economic Offences Wing, Mumbai, dated 30.08.2018, Subject:- Complaint of theft, Criminal Misappropriation of Property, Criminal Breach of Trust and Cheating U/s 378,403,406,409,417,402, r.w. 34 and 120-B of the Indian Penal Code, bearing No. O.W. No. 1424/Banking-1/E.O.W/PE 118-18/18. In this complaint, M/s. Shrenuj & Co. Ltd. is the complainant and officers of ICICI Bank and Bank of India are made as accused. It is informed that the investigation is in progress. 12. The Corporate Debtor contends that the present petition is a fit case for this Bench to exercise its powers U/s 65 of the Code due to the fact that the Financial Creditor is taking advantage of its own wrong doings and hence abusing the process of law. Further, there are disputes going on between the parties in this case. D) Rejoinder by the Financial Creditor: 13. The Financial Creditor in response to the Corporate debtor's averment with respect to the pendency of adjudication of the Counter Claim issue, contends that the same cannot be a defence to the present proceedings in view of the fact that the counter claim made by the Corporate Debtor is neither an admitted sum nor a sum adjudicated by any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidences placed on record, this Bench finds that the counter claim filed by the Corporate Debtor in DRT is no bar to proceed with this petition keeping in view the fact that the Adjudicating Authority is not bound to ascertain the exact amount of claim at the stage of admission. Respected co-ordinate Bench at NCLT, Chandigarh has taken a similar view in the matter of Phoenix ARC Private Limited V. Sarbat Cotfab Private Limited. The relevant portion of the aforesaid order has been reproduced below: "I do not think that this aspect should detain the Adjudicating Authority for an elaborate discussion as the role of Adjudicating Authority is only to ascertain the existence of a default and not the exact amount. In case of admission of the petition and consequent appointment of the Insolvency Resolution professional (IRP), the Financial Creditor has necessarily to file the claim which the IRP is to verify and the IRP or RP, as the case may be, shall look into this aspect as to whether interest is being charged contrary to the principles laid down by the Hon'ble Supreme Court in the Central Bank of India case (Supra) and to determine the exact amount as per the binding law laid down b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished that the loan was duly sanctioned and duly disbursed to the Corporate Debtor but there has been default in payment of Debt on the part of the Corporate Debtor. 23. Considering the above facts, I come to conclusion the nature of Debt is a "Financial Debt" as defined under section 5 (8) of the Code. It has also been established that admittedly there is a "Default" as defined under section 3 (12) of the Code on the part of the Debtor. 24. As a consequence, keeping the admitted facts in mind, it is found that the Petitioner has not received the outstanding Debt from the Respondent and that the formalities as prescribed under the Code have been completed by the Petitioner, I am of the conscientious view that this Petition deserves 'Admission'. 25. Further that, I have also perused the 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. 26. Hence, after perusal of the provisions of the Code and facts and circumstances of this case along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the precise terms of the lease. The story rings false from beginning to end, and yet the tribunal accepted it by saying, "as regards the bona fides of the transactions, in our opinion there is nothing to suspect the same". The Tribunal says, "there is a transparency about the entire transaction which nullifies any attempt to make out the transaction as something - unusual and out of the ordinary." That diamonds are not transparent, that they dazzle with a brilliance that blinds the eye seems to have escaped the notice of the tribunal. It undeservingly accepted the glib explanation of the assesse, though teeming with the improbabilities and strenous on credulity. 37. We, therefore, are of the view that the tribunal's conclusions on this issue are perverse and need to be interfered with. We affirm the conclusions arrived at by the assessing officer and the appellate authority to effect that Rs. 70 lakhs were lent to Bharat S. Shah for substantial periods during the previous years pertaining to the relevant assessment years, without interest and without adequate security." 32. Therefore, I am constrained to make an adverse observation, needless to mention, subject to correctio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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