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TMI Blog2018 (12) TMI 1967X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of IBC. We are satisfied that amount was duly disbursed and a default has occurred. The petition under sub section 2 of Section 7 is complete as no disciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the petition warrant admission. Petition admitted - moratorium declared. - C.P. No. (IB)- 473(PB)/2018 - - - Dated:- 11-12-2018 - CHIEF JUSTICE (RTD.) M.M. KUMAR HON BLE PRESIDENT AND S.K. MOHAPATRA HON BLE MEMBER (T) For the Petitioner : Shri Balvinder Ralhan, Advocate For the Respondent : Mr. Virendra Ganda, Senior Advocate with Mr. Swapnil Gupta, Ms. Nilambika Singh, Advocates JUDGMENT M.M.KUMAR, PRESIDENT The Financial Creditor -Oriental Bank of Commerce has filed the instant petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) with a prayer to trigger the Corporate Insolvency Resolution Process in the matter of M/s Case Cold Roll Forming Limited. The financial creditor is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py of the sanction letter dated 20.09.2006, Agreement of Hypothecation of Assets dated 06.11.2006, Agreement of Term Loan dated 06.11.2006, Agreement of Term Loan for Immovable Property, Common Agreement dated 06.11.2006, Counter Guarantee Agreement dated 06.11.2006, copy of sanction letter dated 07.06.2008 and Agreement of Hypothecation of Assets dated 07.07.2008 have been placed on record (Annexure- A-3, A-5, A-6 A-7, A-8, A-11 A-12). 6. The precise case of the Petitioner is that the total amount in default due to the financial creditor by the corporate debtor as on 31.03.2018 is Rs. 124,89,41,641/- together with principal and interest. Apart from the said amount there are eight bank guarantees outstanding amounting to Rs. 2,96,81,707/- as a contingent liability. 7. As per the averments of the Financial Creditor , the account of the Corporate Debtor was declared as Non-Performing Asset (NPA) on 12.05.2016 in its books. In view of the repeated defaults on the part of the Corporate Debtor to comply with the repayment of the principal and interest dues, the Financial Creditor was constrained to issue the recall notice dated 19.08.2016 under Section 13(2) of the Securitizati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and the applicant has failed to set out the computation of the debt amount arrived in Part-IV, Point-2 of the Form. (viii) Settlement proposal is under consideration between the parties. 11. A rejoinder to the reply has been filed by the Financial Creditor reiterating the submissions made in the petition and controverting the assertions in the reply. 12. We have heard learned counsel for the parties and we deem it appropriate to first deal with the objections raised in the reply by the Corporate Debtor. 13. The first objection raised by the Corporate Debtor is that the applicant has failed to quantify the total debt amount against the aforesaid financial facilities under Part-IV of the Form-1. In this regard it would be profitable to take notice of para 30 of the judgment of Hon ble the Supreme Court rendered in the case of M/s. Innoventive Industries Limited y. ICICI Bank Anr., Civil Appeal No. 8337-8338 of 2017 decided on 31.08.2017 wherein it has been held that in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if there was any discrepancy in calculation then it does not materially affect the admission of the such application and that the Adjudicating Authority is not entrusted with any function to determine the amount of default; and once the default has occurred involving rupees one lac or more in terms of Section 4 of IBC then one of the requirements for initiating the insolvency process stand satisfied. The objection of this nature concerning discrepancy in calculation of the amount would surely be maintainable before the Committee of Creditors or IRP/RP. It was further observed that once default in terms of Rule 3 (12) of IBC is established and all other requirements are fulfilled then the Insolvency Resolution Process must be triggered. The objection raised to oppose the admission of the petition cannot be accepted because the amount of default and unpaid debt as per the pleadings supported with documents has been proved. Such a piece of documentary evidence results into a binding presumption. The Corporate Debtor has failed to rebut that legally binding presumption by producing any cogent documentary evidence to the contrary on record. Therefore, dispute concerning the discrep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor and having perused the paper book with their able assistance we find that the provisions of Section 7 (2) and Section 7 (5) of IBC have been complied with as discussed in detail in the case of ECL Finance Limited y. Digamber Buildcon Private Limited in C.P. No. IB- 1039(PB)/2018 decided on 27.11.2018 are complied with. 20. A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It is evident from the record that the petition has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of IBC. We are satisfied that amount was duly disbursed and a default has occurred. The petition under sub section 2 of Section 7 is complete as no disciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the petition warrant admission. 21. As a sequel to the above discussion, this petition is admitted and Mr. Sanjay Gupta is appointed as the Interim Resolution Professional (Details stated in para 4). 22. In pursuance of Section 13 (2) of the Code, we direct that Interim Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X
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