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TMI Blog2021 (8) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... y Residency, Tripura Road, Guwahati PIN- 781022. 2. The Respondent Corporate Debtor (CD) Company, namely Nayak Infrastructure Private Limited was incorporated on 19.12.2007 with CIN: U74210AS2007PTC008539. 3. The nominal share capital of the Respondent (CD) Company is Rs. 20,00,00,000.00 (Rupees Twenty Crores only) and Paid up share capital of Rs. 16,36,00,000.00 (Rupees Sixteen Crores Thirty Six Lakhs only). The Registered Office of the Corporate Debtor Company is situated at: Swarupananda Road, Lumding, Dist. Nagoan, Assam-782447. 4. The total amount of default is Rs. 88,99,06,621.07 (Rupees Eighty Eight Crores Ninety Nine lakhs Six Thousand Six Hundred Twenty One and Seven paise only) as on 30.11.2020 and BG (Performance guarantee) outstanding (Live) Rs. 10,08,56,147.00 (Rupees Ten Crores Eight lakhs Fifty Six Thousand One Hundred Forty Seven only). Sl. no B.G Bond Nos. Date Amount (Rs.) 1 0994518BG0000147 29.01.2018 1,51,90,820.00 2 0994518BG0000218 22.10.2018 1, 04, 69,279.00 3 0994518BG0000219 22.10.2018 1,81,61,500.00 4. 0994518BG0000015 14.03.2019 2,04,64,568.00 5 0994518BG0000017 28.03.2019 1,26,55,267.00 6 0994518BG0000029 30.05.2019 71,60,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omprising and Area of 0.150 Decimals, Kisam- Gharbari land situated in Mouza- Badmal, District/Tehsil- Jharsuguda and P.S- Badmal, Mutation Khata No. 126/493, Plot No. 850/2077 under Sale Deed No. 10861301183 dated 22.04.13 6) A plot of land measuring 1 katha 2 leches (2.94 Ares) along with a RCC building standing therein covered by Dag No. 976 (New) of KP Patta No. 811 (New), Sahar Guwahati Part 2 under Mouza Guwahati in the District of Kamrup Assam under Registered Sale Deed no. 8435 of 2010 dated 16.12.2010 7) A plot of land measuring 0.105 Decimal bearing Unit No. 20, Khatta No. 321 corresponding to mutation Khatta No. 1133/3242 plot No. 196/2276, Kisam- Dharabari, Mouza- Bhubaneshwar Shar, Jagmara with a RCC building standing there over under Registered Sale Deed no. 1113180457 dated 23.05.2018. 8) The front portion of the fourth floor numbered as Unit 4 "A" with super built up area of 2000 sq. ft. situated in the R.C.C. building known as "HEMSEM COMPLEX" covered by Holding No. 9 in ward no. 28 of Guwahati Municipal Corporation standing on the plot of land measuring 1 kathas 14 lechas out of total land of 9.10 Are covered by Dag no. 958 of K.P Patta No. 437 of Sahar Guwahat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Kamrup, Assam, under registered sale no. of 3139 of 2011 dated 18.04.2011 and is bounded by: North: Putuli Choudhury South: Flat No. 3A East: Flat No. 3C West: Road 11)A plot of land measuring 2 Kathas 10 Lechas covered by Dag No. 169 of Patta No. 86 of revenue Village- Lumding Mouza- District, P.S and Sub-register Office Nagoan, within the Jurisdiction of Nogoan Revenue Circle, under Registered Sale Deed No. 504 of 2009 dated 05.04.2013 and is bounded by:- North: Ratan Sarkar South: Bhajan Singh East: Government Road West: Shyamsundar Das 12)A plot of land measuring 1 Bigha 16 Kathas covered by 2nd R.S Patta No. 42, Dag No. 87, comprising East- West measuring 315'ft 6'' Inch. In the Northern Side & 322'ft. in the Southern Side, and North-South measuring 82'ft. 6'' inch In the Eastern Side and 80'ft in the Western Side, District Cachar, Police Station and Pargona- Barakpur, Mouza- Tarapur Part-VIII, Sub-Registry office- Silchar Sadar, Silchar, Cachar, Assam, under Registered Sale Deed No. 1532 dated 03.06.2013 which is bounded by:- North: Land of Himangshu Kumar Nath South: Land of Sisur Nath & others East: Land of Assam Industrial Development Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts showing the amount claimed to be in default and its calculation from and as on 28.01.2020 and are continuing as NPA till date. 9. The Financial Creditor, to substantiate its claim has also enclosed the following documents:- 1. Sanction letter dated 19.09.2007 (page 18) Annexure I-1. 2. Supplemental agreement of loan for increase in overall limit dated 20.09.2007 executed by the Corporate Debtor and Personal Guarantor (pages 19- 26) Annexure I-2. 3. Supplemental agreement for Hypothecation of Goods and assets for increase in the overall limit dated 20.09.2007 executed by the Corporate Debtor and Personal Guarantor (pages 27-31) Annexure I-3. 4. Supplemental deed of guarantee for increase in overall limit dated 20.09.2007 executed by the Personal Guarantor (pages 32-38) Annexure I-4. 5. Letter regarding grant of individual limit within the overall limit dated 20.09.2007 executed by the Corporate Debtor (pages 39-41) Annexure I-5. 6. Form of agreement where only one or some of the persons furnishing the security is/are a holder/holders of the account on which advance is granted dated 20.09.2007 (pages 42-45) Annexure I-6. 7. Agreement of the Corporate Debtor and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 executed by the Personal Guarantor (pages 166-172) Annexure I-19. 20. Letter regarding grant of individual limit within the overall limit dated 20.07.2009 (pages 173-175) Annexure I-20. 21. Sanction letter dated 29.09.2010 (pages 176-186) Annexure I-21. 22. Board Resolution of corporate debtor dated 29.09.2010 (pages 187-188) Annexure I-22. 23. Supplemental Agreement of loan for increase in overall limit dated 29.09.2010 executed by the Corporate debtor wherein the existing limit of Rs. 34,64,00,000.00 was enhanced to Rs. 41,50,00,000.00 (pages 189-196) Annexure I-23. 24. Supplemental Agreement of hypothecation of goods and assets for increase in overall limit dated 29.09.2010 executed by the Corporate Debtor (pages 197- 201) Annexure I-24. 25. Supplemental Deed of guarantee for increase in overall limit dated 29.09.2010 executed by the Personal Guarantors (pages 202-206) Annexure I-25. 26. Board resolution of corporate debtor dated 08.12.2010 (pages 207-208) Annexure I-26. 27. Supplemental Agreement of loan for increase in overall limit dated 08.12.2010 executed by the Corporate Debtor wherein the existing limit of Rs. 41,50,00,000.00 was enhanced to Rs. 95,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal agreement of Hypothecation of goods and assets for increase in overall limit dated 17.02.2016 executed by the Corporate Debtor (pages 333- 342) Annexure I-45. 46. Supplemental deed of guarantee for increase in overall limit dated 17.02.2016 executed by the personal guarantor (pages 343-349) Annexure I-46. 47. Omnibus counter guarantee dated 17.02.2016 executed by the corporate debtor (pages 350-353) Annexure I-47. 48. Board resolution of Corporate debtor dated 19.12.2016 (pages 354-355) Annexure I-48. 49. Letter dated 20.12.2016 by the corporate debtor to the Financial Creditor (Consortium Leader) seeking sanction of credit facilities (pages 356) Annexure I- 49. 50. Sanction letter dated 02.03.2017 executed by the Corporate Debtor and Personal Guarantors (pages 357-378) Annexure I-50. 51. Board resolution of corporate debtor dated 18.03.2017 (pages 379-380) Annexure I-51. 52. Working Capital Consortium Agreement executed by the Corporate Debtor and the Consortium Leader and Members (Financial Creditor herein as the Lead bank) (Bank of India and Punjab National Bank as the Members Bank) dated 20.03.2017 for the limit of Rs. 1,19,50,00,000.00 (pages 381-414) Annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antee dated 13.11.2017 executed by the personal guarantors (pages 605-607) Annexure I-70 71. Sanction letter dated 30.06.2018 executed by the Corporate debtors and Personal Guarantors (pages 608-626) Annexure I-71. 72. Board resolution dated 03.01.2019 of corporate debtor (pages 627-629) Annexure I-72. 73. Modified Working Capital Consortium Agreement executed by the Corporate Debtor and the Consortium Leader and Members (Financial Creditor herein as the Lead bank) (Bank of India and Punjab National Bank as the Members Bank) dated 05.01.2019 for the limit of Rs. 1,64,50,00,000.00 (pages 630-670) Annexure I-73. 74. Letter of authority to lead bank dated 05.01.2019 (pages 671-672) Annexure I- 74. 75. Modified Joint deed of hypothecation dated 05.01.2019 executed by the Corporate Debtor (pages 673-689) Annexure I-75. 76. Inter-se Agreement executed between members of the Consortium dated 05.01.2019 (pages 690-702) Annexure I-76. 77. Deed of Joint and Several personal Guarantee dated 05.01.2019 executed by the personal guarantor (pages 703-712) Annexure I-77. 78. Omnibus counter Guarantee dated 05.01.2019 executed by the personal guarantors (pages 713-714) Annexure I-78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure I-98. 99. Equitable mortgage by deposit of title Deed being Sale Deed no. 2886 (pages 897-903) Annexure I-99. 100. Valuation of the aforesaid property (being Sale Deed No. 2886) Rs. 2,30,57,000.00 (pages 904-908) Annexure I-100. 101. Letter of confirmation of mortgage by deposit of title deeds executed by Sri Ananta Charan Nayak (pages 909-910) Annexure I-101. 102. Equitable mortgage by deposit of title deed being Sale Deed no. 3138 (pages 911-920) Annexure I-102. 103. Valuation of the aforesaid property (being Sale Deed No. 3138) Rs. 43,14,000.00 (pages 921-928) Annexure I-103. 104. Letter of confirmation of mortgage by deposit of title deeds executed by Sri Ananta Charan Nayak (pages 929-930) Annexure I-104. 105. Equitable mortgage by deposit of title deed being Sale Deed no. 3139 (Pages 931-939) Annexure I-105. 106. Valuation of the aforesaid property (being Sale Deed No. 3139) Rs. 44,74,000.00 (pages 940-946) Annexure I-106. 107. Letter of confirmation of mortgage by deposit of title deeds executed by Sri Ananta Charan Nayak (pages 947-948) Annexure I-107. 108. Equitable mortgage by deposit of title Deed being Sale Deed no. 504 (pages 949- 962) Annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FIDAVIT VERIFYING PETITION (pages 1159-1161) Annexure I-130. 131. STATEMENT OF ACCOUNTS (paged separately) (pages 1166-1781) Annexure I- 131. 132. CONSENT OF THE PROPOSAL INTERIM RESOLUTION PROFESSIONAL IN FORM- 2 AND DECLARATION REGARDING ELIGIBILITY BOTH DATED 08.10.2018 (pages 1162-1163) Annexure II. 10. The Petitioner Bank has suggested the name of Insolvency Professional Mr. Vishal Ghisulal Jain, Office No. 502, G Square Business Park, Opp. Sanpada Railway Station, Sector 30-A, Vashi, Navi Mumbai-400703 having IP Registration No. IBBI/IPA-001/IP-P00419/2017-18/10742 to be appointed, if this petition is allowed and the proposed IRP has also given his affirmation/consent in writing, which is annexed with the petition. 11. In response to application filed by the Financial Creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016, a reply was filed by the Corporate Debtors Nos. 1 to 5 undersigned by Mr. Ananta Charan Nayak, Managing Director of Nayak Infrastructure Pvt. Ltd dated 15th July, 2021. It is submitted that - a. That the application filed under section 7 of the Insolvency and Bankruptcy Code, 2016 by the Financial Creditor, the State Bank of India is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g simultaneous applications for CIRP against the principal Borrower and the Guarantor, yet the IBC is silent on the furthering procedure if CIRP has been initiated against both Principal Borrower as well as Corporate Debtor. Neither the IBC specifies any provision for management of such disputes nor any precedent of judgments happen to tackle the same. d. That this instant application under Section 7 is not maintainable other various grounds. These are- i. In the present case in hand, the Financial Creditor has failed to prove the basic requirement that the amount advanced is a financial debt as provided under the Code in Section 5(8). The entire foundation of an application under Section 7 of the Code is based on the premise that there is a default in relation to a financial debt. Here, in the present case the date of default is not mentioned. Further, the Financial Creditor has failed to prove the basic requirement that the amount advanced is a financial debt as provided under the Code. ii. The present application is barred under Article 137 of the Limitation Act as the default has occurred over 3 years prior to the date of filing this application. Notwithstanding anything ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one through the same and understood the contents thereof. He is well acquainted with the facts of the case and competent to swear this affidavit. b. That the present reply is devoid of any merit and does not disclose any defence and the said affidavit in reply is based on manufactured, concocted and engineering facts prepared for instant litigation. The said counter affidavit is bogus, vague, non- speaking, frivolous and no cognizance should be taken and the corporate debtor has suppressed many facts which are germane to the purpose of the instant case. The application filed by the financial creditor is wholly maintainable and the claim of the applicant is admissible in nature, and the disputes raised are an afterthought to vitiate the claim of the financial creditor. c. That a bare reading of the provisions of Regulations 76 and 77 of the State Bank of India General Regulations, 1955 read with Gazette Notification dated 27.03.1987 clearly shows that the Managing Directors , the Deputy Managing Directors, the Chief General Managers and such other officers and employees of the State Bank as the Central Board or the Executive Committee may authorize in this behalf by notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection it is submitted that the default occurred on 28.01.2020 i.e. that date of NPA and as such the same is under the period of limitation. iv. That the statements made in paragraph 4(iii) of the reply are not true and correct and the same are hereby denied. In this connection it is submitted that a Chief Manager is duly authorized to sign and sworn the affidavit as per Regulations 76 and 77 of the State Bank of India, General Regulations, 1955 and the Gazette Notification dated 27.03.1987. For reference of the Court the Regulations 76 and 77 of the State Bank of India, General Regulations, 1955 and reproduced herein below:- 76. Accounts receipts and documents of State Bank by whom to be signed- (1) The managing directors, the deputy managing directors, the chief general managers and such other officers and employees of the State Bank as the Central Board or the Executive Committee may authorize in this behalf by notification in the Gazette of India, to such extent and subject to such limitation if any, as the Central Board or the Executive Committee may specify or impose in so authorizing, are hereby severally empowered, for and on behalf of the State Bank, to sign all do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides at length and perused the records/documents filed. Considering the materials made available by the Applicant Bank, arguments of both parties, this Adjudicating Authority is satisfied that, a) The Corporate Debtor availed the loan/ credit facilities from the Financial Creditor; b) Existence of debt is above Rupees One Lac; c) Debt is due, payable and defaulted; d) Default occurred on 28.01.2020; e) Application has been filed within the limitation period, as the date of default is 28.01.2020, when the Application under Section 7 of the IBC has been filed by the FC i.e. State Bank of India on 18.03.2021; f) Copy of the Application/Amended Application filed before this Bench has been sent to the Corporate Debtor and the application filed by the Applicant Bank under Section 7 of the IBC is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process in respect of the Corporate Debtor; Hence, the present IB Petition is admitted with the following directions/observations. The date of admission of this petition is 26/08/2021. 14. As per the provisions of Section 13 and 14 of the IB Code on the date of commencement of insolvency, this Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified under Section 17, 18, 20 and 21 of IB Code. The IRP shall perform all his functions contemplated, inter-alia, in Sections 15, 17, 18, 19, 20 & 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the 'Code', Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other persons associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the IRP as may be required by him in managing the day-to- day affairs of the Corporate Debtor. In case there is any violation, the IRP would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The IRP shall be under duty to protect and preserve the value of the property of the Corporate Debtor as a part of its obligations imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code, Rules and Regulations. 17. It is also observed that the Applicant Bank has claimed an aggregate amount of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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