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TMI Blog2022 (10) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... t by offering the sum of Rs. 2.66 Crores towards the Principal Dues and committed to pay the OTS sum before 31.03.2023. The same was rejected by the Petitioner vide the letter dated 28.04.2022, stating that the OTS proposal is only towards principal dues and does not address interest, further interest, penal interest and other cost and charges and advised that the application is not received in prescribed format before the last date i.e. 31.12.2021. It is to be noted that the settlement is derived between the parties only upon the acceptance by the parties, which is not in the present case. Hence, the Bench has come to a conclusion that the Corporate Debtor is liable and defaulted in making the payment to the Petitioner - the nature of Debt is a Financial Debt as defined under section 5 (8) of the Code. It has also been established that there is a Default as defined under section 3 (12) of the Code on the part of the Debtor. The two essential qualifications, i.e., existence of debt and default , for admission of a petition under section 7 of the I B Code, have been met in this case. Besides, the Company Petition is well within the period of limitation. It is clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 15,37,173 3,54,624 82,046 19,73,843 Total 3,88,64,695 1,41,79,318 47,97,463 5,78,41,476 3. The following documents categorically demonstrate the financial debt due and payable by the Corporate Debtor to the Financial Creditor :- a. Deeds of Hypothecation dated 23.01.2013, 25.03.2014, 23.03.2015; b. Loan Agreement dated 23.01.2013; c. Subordinate Debt Agreements dated 23.01.201, 25.03.2014, 23.03.2015; d. Deed of Personal Guarantee dated 23.03.2015; e. Statement of Accounts as on 10.05.2021 under Bankers Book of Evidence Act,1981; f. Loan Recall notice dated 25.11.2020; g. Demand Notice under sections 13(2) SARFAESI Act dated 16.02.2021; h. Demand Notice under sections 13(4) SARFAESI Act dated 06.05.2021. 4. The Petitioner submits that, the Respondent had approached the Petitioner and requested to grant Financial Facilities. Subsequently, the Petitioner issued a Letter of Intent dated 26.12.2012, for Direct Credit Scheme Risk Capital and thereafter entered into a Loan Agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. 8. The Petitioner submits that, in view of non-clearance of dues, a Section 7 application was filled before the NCLT Mumbai bearing C.P.(IB)- 2520(MB)/2019 on 01.07.2019 by the Petitioner. However, before its final admission, the Respondent had submitted for a consent to clear the dues by way of an OTS, for an amount of 350 lakh by which, (i) Part-advance of 5 lakhs towards OTS was made on 09.10.2019 with assurances; (ii) to pay 10.0 Lakhs between November 2019 to March, 2020; (iii) Balance payment of 3.35 crore to be paid by final takeover of the debt by the ARC by 31.03.2020. Accordingly, Applicant filed consent terms before the NCLT and application came to be withdrawn vide order dated 09.12.2019. 9. The Petitioner submits that, despite repeated requests for a financial commitment to honour the OTS, the Corporate Debtor did not come forward to clear the dues. As a prudent measure, the Petitioner issued recall notice on 25.11.2020 and notice under sec 13(2) of SARFAESI act on 16.02.2021 and thereafter notice under sec 13(4) of SARFAESI act on 06.05.2021. 10. The Petitioner Submits that, in view of the above, outstanding dues by the Respondent can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent unequivocally accepted the terms of the OTS offer and fulfilling the obligations under the scheme by paying 5% of the OTs amount i.e. 9.96 lakhs to the Petitioner. 17. The Respondent in its OTS Application, had accepted all the Terms of the OTS scheme. However, The Petitioner delayed the formal communications to the Respondent. Thereafter, the Respondent addressed an email dated 25.01.2022 to the Respondent requesting for the formal communication upon which the Petitioner addressed an e-mail dated 27.01.2022 to the Respondent stating that the application of the Respondent is under consideration for approval. It was further stated that the letter could be issued only after receipt of Credit Information Report (CIR) of the other lender, Assets Care Reconstruction Enterprise Limited (ACRE) requesting the Respondent to arrange for the same. The Respondent submits that there was no such condition in the scheme. Consequently, the Petitioner addressed an e-mail dated 21.02.2022 to the Respondent stating that the NPA status of the Respondent with ACRE was unclear and therefore, the Petitioner refused to perform their obligation. 18. The Respondent in its reply submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rejected by the Financial Creditor via Email dated 30.11.2021. The Corporate Debtor via letter dated 31.12.2021 has accepted to make the payment under the OTS scheme up to March 2022 which was rejected by the Petitioner, citing the Sanction Letter can be issued only after the receipt of Credit Information Report of the other lender ACRE. Vide letter dated 21.02.2022 the Petitioner has declined the OTS proposal under the NDND 2022 scheme, due to the absence of clarity regarding NPA status with the other lender ACRE. However, the Corporate Debtor vide letter dated 26.04.2022, proposes to settle the dues outstanding by One Time Settlement by offering the sum of Rs. 2.66 Crores towards the Principal Dues and committed to pay the OTS sum before 31.03.2023. The same was rejected by the Petitioner vide the letter dated 28.04.2022, stating that the OTS proposal is only towards principal dues and does not address interest, further interest, penal interest and other cost and charges and advised that the application is not received in prescribed format before the last date i.e. 31.12.2021. 23. It is to be noted that the settlement is derived between the parties only upon the acceptance b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffective from the date of the Order. 29. Accordingly, the above Petition is Admitted by passing the following: ORDER The above Company Petition No. 554/IBC/MB/2021 is hereby allowed and initiation of Corporate Insolvency Resolution Process (CIRP) is ordered against Kalra Overseas Precision Engineering Limited. a. This Bench hereby appoints Mr. Gajesh Labhchand Jain, having address at D-501, Clifton Society, Raviraj Oberoi Marg, Shastri Nagar, Andheri (West), Mumbai 400 053, and having registration No. IBBI/IPA-001/IP-P-01697/2019-2020/12588, having email idgajeshjain@ gmail.com as the interim resolution professional to carry out the functions as mentioned under the Insolvency Bankruptcy Code, 2016. b. The Petitioner shall deposit an amount of Rs.5 Lakhs towards the initial CIRP costs by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. The IRP shall spend the above amount towards expenses and not towards fee till his fee is decided by CoC. c. That this Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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