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TMI Blog2022 (9) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... cating Authority on the ground that the Financial Creditor had advanced several cash and credit facilities ('Credit facility' or 'Loan')to the Corporate Debtor. 4. The total amount claimed in default by the Financial Creditor is Rs.31,57,17,939.56 (Rupees Thirty One Crore Fifty Seven LakhSeventeen ThousandNine Hundred Thirty Nine and Fifty Six Paisa only) including interest @10.75%. 5. It is submitted in the Petition, Part - II that the authorised share capital of the Corporate Debtor is Rs.1,10,00,000/- (Rupees OneCrore Ten Lakh only) with paid up Capital as Rs. 10,00,000/- (Rupees Ten Lakh only). Submissions by the Ld. Counsel appearing on behalf of the Financial Creditor 6. The Financial Creditor had granted several credit and cash facilities to the Corporate Debtor and the Corporate Debtor defaultedin repayment of such facilities. The Cash Credit limit sanctioned by the Financial Creditor was of Rs.5,00,00,000/- and later on enhanced to Rs.7,50,00,000/- 7. The total debt for the accounts- '259102000001663', '259655100000019' and '7508778000000277' is Rupees 31,57,17,939.56/- (Rupees Thirty One Crore Fifty Seven Lakh Seventeen Thousand Nine Hundred Thirty Nine and Fifty Six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has filed this application in the year 2019. 14. It is pertinent to mention that the default could not have taken place on 30 June, 2011 because as per the sanction letter dated 31 March, 2011 the loan account would be due for repayment before 07 March, 2012. There is no evidence to substantiate that the default was on 30 June, 2011. 15. For a statement of Accounts to be admissible before the Court, it has to be in accordance with the Bankers Book of Evidence Act, 1891. But the Financial Creditor has failed to establish that the statements of accounts are in accordance with the Bankers Book of Evidence Act. 16. Reliance has been placed on Sampuran Singh v. Niranjan Kaur (AIR 1999 SC 1047), Vashdeo R. Bhojwani v. Abhyudaya Co-operative Bank Limited &Anr. ((2019) 9 SCC 158) and Gaurav Hargovindhbhai Dave v. Asset Reconstruction Company (India Limited) &Anr ((2019) 10 SCC 572) 17. Further, the contention of the financial creditor that the debt has been acknowledged in the balance sheet by the auditor it is stated that the Auditor is a third party and does not have and authority to decide or to adjudicate an issue on 'default'. It is for this Adjudicating Authority to adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 - 2016 (page 80 of the Supplementary Affidavit), 2016 - 2017 (page 101 of the Supplementary Affidavit) & 2017 - 2018 (page 125 of the Supplementary Affidavit), it states that the Corporate Debtor has defaulted in the repayment of loans or borrowings to financial institutions, banks. 23. In Laxmi Pat Surana V. Union Bank of India & Anr, decided on March 21, 2021, the Hon'ble Supreme Court has held that. "37. Ordinarily, upon declaration of the loan account/debt as NPA that date can be reckoned as the date of default to enable the financial creditor to initiate action under Section 7 of the Code. However, Section 7 comes into play when the corporate debtor commits "default". Section 7, consciously uses the expression "default" not the date of notifying the loan account of the corporate person as NPA. Further, the expression "default" has been defined in Section 3(12) to mean non-payment of "debt" when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor, as the case may be. In cases where the corporate person had offered guarantee in respect of loan transaction, the right of the financial credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich would extend the limitation period from time to time. 26. Further, it is seen from the record that the date of default has been mentioned as 30 June, 2011, which stood revived with the acceptance of the OTS proposal by the Corporate Debtor on 28 December, 2018. Moreover, upon perusal of the records at page 231 and 232 of the Petition, it is apparent that the Corporate Debtor also made part payment of the OTS proposed amount. Further, the settlement proposal under the SARAL KARJ BHUGTAN YOJNA provided for the payment of the balance amount within 31 March, 2019. 27. In light of the above facts and circumstances, the present petition filed by the Financial Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time. 28. Accordingly, it is, hereby ordered as follows:- (a) The application bearing CP (IB) No. 1847/KB/2019 filed by IDBI Bank, the Financial Creditor, under section 7 of the Code read with rule 4(1) of the Insolvency & Bankruptcy (Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e management of the Corporate Debtor shall vest in the IRP or the RP, as the case may be, in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within one week from the date of receipt of this Order, in default of which coercive steps will follow. No separate notice for cooperation by the suspended management should be expected. (g) The IRP/RP shall submit to this Adjudicating Authority periodical report with regard to the progress of the CIRP in respect of the Corporate Debtor. (h) The Financial Creditor shall deposit a sum of Rs.5,00,000/- (Rupees Five Lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). (i) In terms of section 7(5)(a) of the Code, Court Officer of this Court is hereby directed to communicate this Order to the Financial Creditor, the Corporate Debtor and the IRP by Speed Post and email immediately, and in any case, not later than two days from the date of this Order. (j) Additionally, the Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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