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TMI Blog2017 (7) TMI 1428X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Senior counsel for the Financial Creditor are as follows: a) The petitioner is a Financial Creditor showing an outstanding debt to be liquidated by the Corporate debtor as Rs. 723,75,09,963/- as on 20.02.2017. It is contended that petition is numbered by the office only after complying with all objections raised by it, and thus it is deemed to complete in all respects. As per rules, Interim Resolution Professional, who is free from any disciplinary proceedings, is to be nominated for consideration of this Tribunal. The default committed by the Corporate debtor is also established through the following documentary evidence adduced by the Financial Creditor before this Tribunal. b) The balance sheet or the annual report of the Corporate debtor's Company for the year 2011-2012, which is at page No. 681-728 of Volume-III filed by the Financial Creditor. In the balance sheet, the Corporate debtor in page 715 has admitted to have availed the term loan and other financial limits from various creditors amounting to Rs. 445,34,66,021, which includes the loan availed from this Financial Creditor i.e. Canara Bank. c) The deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Judicature at Hyderabad in WP No. 14694/2014 vide its order dated 25.07.2014 categorically observed that the liability of the Corporate debtor to pay to the Financial Creditor is not in dispute and recording the same, the interim order initially granted was not extended. j) It is stated that the Hon'ble Debts Recovery Tribunal (DRT) in SA No. 27/2013 vide its order dated 26.09.2013 discussed about the entire loan transaction and dismissed the application. The recital in Para 3.1, 3.2, 3.3, 4.1, 4.2, 5, 6, 6.1, 6.2, 6.3, 6.6, 6.8, 6.17 and 6.19 overwhelmingly manifest that the default was committed in repayment of the loan by the Corporate Debtor herein. k) It is stated that Corporate Debtor has filed CA Nos. 347 and 346 of 2013, by seeking sanction of Composite Scheme of Demerger and Arrangement between M/s. Deccan Chronicle Holdings Limited and M/s. Land Interactive Media Limited. In the said application which is filed before the Hon'ble High Court, (enclosed at Page No. 868) the Corporate debtor has admitted total liability with the Financial Creditor i.e. Canara Bank was Rs. 334,35,32,645/- as on the date of filing of the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erriding affect over any other statute or statutes in force. Section 238 of the Insolvency and Bankruptcy Code, 2016 reads as follows: - 238. Provisions of this Code to override other laws - The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law Therefore, it is contended that Insolvency and Bankruptcy Code, 2016 is a special enactment which has come into force with effect from 01.12.2016 only. The Hon'ble Supreme Court in Allahabad Bank Vs. Canara Bank reported in (2000) 4 SCC 406 at Para No. 38 and 39 has laid down a clear ratio which states that the Companies Act is a general law and shall not prevail over the Recovery of Debts Due to Banks and Financial Institutes Act which is a special statute. A clear ratio was also laid down to state that when there are two special statutes, the latter will normally prevail over the former. Similarly, the ratio is laid down in Mardia Chemicals Limited and others Vs. Union of India and others reported in (2004) 4 SCC 311 by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the case to ascertain factual background of the case and admitting case would have wide ramifications on parties. Accordingly, the Respondent have filed their replies by raising several objections by disputing each and every averments made in the petition filed by Financial Creditor to make admission as a final hearing. The Respondent has also filed CA No. 105 of 2017 by seeking to dismiss the present petition as not maintainable for the grounds mentioned therein. 4. Since the case is filed under IBC, 2016, it is necessary to decide its admissibility basing on accepted fundamental principles for admission of a case. And it is not absolute necessary to undertake full-fledged enquiry of each issue raised in the case, and they will be decided at later date. In any case, considering the nature of business, public interest involved, we have undertaken such an exercise in order to minimize further litigation on the issue. Accordingly, the case was heard on various dates vis. 05.04.2017, 12.04.2017, 19.04.2017, 26.04.2017, 06.06.2017, 13.06.2017 and 19.06.2016. The case was adjourned on these dates at the request of one party or other, however with consensus of both the parties. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 7(3) of IBC, 2016 Section 3(32) of IBC defines specified as "specified" means specified by regulations made by the Board under this Code and the term "specify" shall be construed accordingly". In the said background, no proceedings under IBC can be initiated by a Financial Creditor as on date, in absence of any record of default which can be placed on record under Section 7 of IBC. It is stated that the provisions of Section 7(3)(a) of IBC are mandatory in nature as the word used is "shall". e. The application in question is incomplete like certificate annexed @ Pg. 645-646 and 647 are unsigned and such unsigned certificates can by no stretch of imagination be construed as admissible documents, certificates are further not certified/signed on bottom of each page in terms of the Bankers Book Evidence Act, 1891 etc. f. When a petition under provisions of Section 391 of the Act of 1956, is pending before Hon'ble High Court, the present petition do not lie. He relied upon judgment passed by the Hon'ble Delhi High Court in the matter of Sunil Gandhi & Anr. Vs. A.N. Buildwell Pvt. Ltd., CO. APPL(M) 115/2016, g. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor, and it is not case of Corporate Debtor that it has entirely paid principal amount or interest thereon. It is not in dispute that debt in question was already declared as NPA as early as on 2012. However, without paying any substantial amount of due in question, the Corporate Debtor relying on un-tenable grounds, which are purely clerical/technical grounds like mistakes/mismatch of calculation, wrong quoting of rule/provision of law for issuing certificates in question etc. as detailed supra are resisting admission of case. 9. It is not the case of Corporate Debtor that there is/are liquidation/winding up proceedings are underway to liquidate/wind up the Company and that the present Financial Creditor can join other group of Creditors. It is not in dispute that some petitions were filed by some of other Creditors against Respondent for winding up/liquidation as the same are pending before the Hon'ble High Court as they cannot be transferred to this Tribunal as per Govt. of India guidelines/instructions as detailed by the Corporate Debtor supra. There is a lot of distinction between filing/pending of a winding up/liquidation and already started those proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondent on the issue is hardly have any bearing on the issue. 12. We have perused all grounds/contentions raised by the Corporate Debtor in CA No. 105 of 2017 and also the reply filed by the Financial Creditor. For the reasons mentioned above, these grounds are not at all maintainable, and they are liable to be rejected and thus hereby rejected as devoid of any merits and hold that the petition is maintainable. And the objections raised by the respondents have no longer res integra in view of long history of case as mentioned supra. 13. We are conscious of our jurisdiction vis-à-vis. jurisdiction of Hon'ble High court(s) and Hon'ble Supreme Court of India in the issue. Our jurisdiction is below jurisdiction and powers of Hon'ble High courts and the Hon'ble Supreme court and thus our orders shall not interfere/interpret with any order(s) passed or would be passed by the Hon'ble High Court(s)/Supreme Court of India in the instant case. We are only exercising our jurisdiction by virtue of powers conferred on us by Insolvency and Bankruptcy Code, 2016, Companies Act, 1956/2013. 14. As discussed above, we are in full agreement with learned Senior C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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