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TMI Blog2022 (6) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... y Yes Bank Limited, the Financial Creditor/Applicant, under Section 7 of the Insolvency & Bankruptcy Code, 2016 (I&B Code) against Privilege Industries Limited, Corporate Debtor, for initiating Corporate Insolvency Resolution Process (hereinafter referred to as "CIRP"). 2. The Financial Creditor is a Public Limited Company having its Head Office at ONE International Centre, Tower II, 26th Floor, Senapati Bapat Marg, Elphinstone (W), Mumbai - 400013, Maharashtra. This application is filed by Mr. Kapil Thakkar, Senior Vice President - Asset Reconstruction & Management authorized vide a Power of Attorney dated 11.01.2021 (annexed as 'Annexure B' on Page.36 of the Petition), claiming a total amount of Debt Due of Rs.494,64,35,548/- (Rupees fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity from Rs.25,00,00,000 to Rs.40,00,00,000. iv. In addition to the above facilities, the Financial Creditor had also provided - 1) Moratorium Funded Interest Term Loan (MFITL) on moratorium interest amounting to Rs.12,63,42,192/- (Rupees twelve crore sixty-three lakh forty-two thousand one hundred ninety-two only); and 2) Funded Interest Term Loan (FITL) on Term Loan 1, Term Loan 2 and Overdraft Facilities amounting to Rs.27,17,80,710/- (Rupees twenty-seven crore seventeen lakh eighty thousand seven hundred ten only) b. The Financial Creditor in its Company Petition submits (annexed as 'Annexure F' on Page 43 of the Petition) that the total amount outstanding as on 05.04.2021 was Rs.494,64,35,548/- (Rupees four hundred ninety-four c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitting Financial Creditor's present Section 7 application. e. The Financial Creditor further submits that the Corporate Debtor had acknowledged its Recall Notice dated 12.04.2021 (annexed as 'Annexure GG' on Page 1177 of Volume IV (Part II) of the Petition) via Email dated 12.04.2021 (annexed as 'Annexure HH' on Page 1196 of Volume IV (Part II) of the Petition) whereby the Corporate Debtor had informed the Financial Creditor that it was under severe financial stress which had ultimately affected its ability to serve its debt obligations. This, according to the Financial Creditor clearly indicates that the Corporate Debtor had admitted its liability. f. Lastly, the Financial Creditor in its Written Submissions dated 09.03.2022 subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were exacerbated due to the outbreak of the Covid-19 pandemic, however, subsequent payments were made towards interest in February, 2020 and March, 2020 which can be seen from the Bank Statements on page 1066 (annexed as part of 'Annexure AA (Colly) Part III' on Page 1005 to 1069 of the Petition) made available by the Financial Creditor in its Company Petition. e. The Corporate Debtor submits that it was Housing Development of India (HDIL) who had executed Corporate Guarantees in favour of the Corporate Debtor. The Corporate Debtor further points out that a CIRP has been initiated against HDIL by an order of this Hon'ble Tribunal, Mumbai Bench dated 20.08.2019 and that the Financial Creditor had lodged a claim with the Resolution Profess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fidavit in Reply dated 22.11.2021 stated that the Financial Creditor had not provided any documentary evidence which would prove that the initial default i.e. 'Date of Default' had occurred on 01.01.2020. 10. On perusal of the documents submitted by the Applicant Financial Creditor, it is clear that there exists a financial debt and the debt is in default. However, the Bench is of the view that the date of default is 01.10.2020 as mentioned in the NESL Report as annexed by the Financial Creditor himself at p.502 as Annexure N1- N8 of the petition to show the record of default available with the Information Utility as on 01.10.2020 and not 01.01.2020 as mentioned by the Financial Creditor in Part IV of the petition. This petition, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Written Submission of the Corporate Debtor, it is abundantly clear that the loan for FITL was disbursed on 01.09.2020 and the default is outstanding from the period commencing from 01.10.2020. 13. Therefore, relying upon the facts of the case, arguments advanced by both parties and the documents mentioned hereinabove, this Bench is of the view that because of insertion of Sec 10A in IBC as mentioned above, this case is clearly attracted by the provisions of Sec 10A as the date of default in this case is 01/10/2020. As per Sec 10A, no IBC proceedings can be initiated against the Corporate Debtor for the default which has occurred between the period from 25/03/2020 till 24/03/2021, keeping in view of the extended period of Sec 10A, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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