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TMI Blog2023 (8) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents who is already on caveat, enabling it to file its reply - Let the reply be filed within two weeks i.e. up to 25th August, 2023 and rejoinder, if any, be filed by the Appellant within two weeks thereafter i.e up to 14th September, 2023. List for hearing on 20th September, 2023. In the meanwhile, till the next date of hearing, operation of the impugned order shall remain stayed. - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) And [ Mrs. Shreehsa Merla ] Member ( Technical ) For the Appellant : Mr. P.H. Arvindh Pandian, Sr. Advocate For the Respondents : Ms. Chithra Nirmala, Advocate for R - 1 ORDER 1. On 28.07.2023, the following order was passed by this Court, which is as under : - This Appeal has arisen from the Order dated 20.07.2023, by which an Application filed by the Indusind Bank Ltd. (Financial Creditor) under Section 7 of the Insolvency and Bankruptcy Code, 2016, (for short `The Code ) for Resolution of the sum of Rs.94,01,79,117.26/- has been admitted only qua sum of Rs.50,78,54,032/- of the Loan Account No.603014030038 about which the `date of default has been mentioned by the Applicant Bank as 28.02.2020. 2. Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C/PCFC/FBD/FBP 40.00 Bank Gurantee-1 0.50 Bank Guarantee -2 (sub-limit of EPC and BG Limit for takeover limit) (40.50) Total Fund Based + Non Fund Based Exposure 65.50 Forward Cover/Derivative Limit (Regular) PFE MTM (25.00) (2) 1.25 Forward Cover/Derivative Limit (Regular) PFE MTM (90) (7.2) 4.50 Total exposure 71.25 4. The aforesaid facilities were availed by the Corporate Debtor after executing Master General Terms Agreement and multi-facility Loan Agreement on 02.05.2018 and hypothecated all its current assets through deed of hypothecation executed in favour of the Financial Creditor (Bank). 5. The Financial Creditor stated that the Corporate Debtor requested for short term loan of Rs. 115 Crores on 20.02.2019 which was considered by the Financial Creditor and the existing facilities were renewed, short-term loan of Rs. 115 Crores was granted with the facilities amounting to Rs. 186.25 Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efault as mentioned in the Form-1 is 30.04.2020. However, on perusal of the Form-D of NeSL report filed by the Financial Creditor vide Dy. No. 2740 dated 26.05.2023, the dates of default for the different tranches of loans are as under: No. Unique Debt Identifier NO. Date of Default Amount 1 AAACI1314G_822014038424 30.04.2020 1404784.00 2. AAACI1314G_603014030038 28.02.2020 50,78,54,032.00 3. AAACI1314G_516003441349 01.05.2020 6,53,87,702.00 4. AAACI1314G_890000026854 30.04.2020 7,57,01,402.90 18. Therefore, as per the NeSL report Form-D produced by the Financial creditor, the one particular date of default for Sl. No.2 above is 28.02.2020 which is prior to the beginning of the period specified under Section 10A of IBC. The amount in default pertaining to this loan tranche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicate the date of default as 28.02.2020. It is further submitted that the said report was generated on 25.05.2023 whereas the application under Section 7 of the Code was filed on 08.04.2022 in which the date of default is mentioned as 30.04.2020 which cannot be changed as per the convenience of the Financial Creditor and in this regard, reliance has been placed on a decision of the Hon ble Supreme Court in the case of Ramesh Kymal Vs. Siemens Gamesa Renewable Power Pvt. Ltd. (2021) 3 SCC 224 and has also referred to an interim order passed by this Tribunal in the case of Uma Maheswari Vs. UCO Bank, CA (AT) (CH) (Ins) No. 136 of 2023 dated 17.05.2023 on the basis of the aforesaid judgment of the Hon ble Supreme Court. 14. On the other hand, Counsel appearing on behalf of the Financial Creditor has submitted that when the application under Section 7 of the Code was originally filed on 08.04.2022, the Financial Creditor produced the record of default dated 12.04.2022 in part A and B which was then issued by the NeSL-IU in which the record of default pertaining to all the loan accounts was shown as the date of default 30.04.2020. 15. It is further submitted that subsequently o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (Issued By information utility under sub-regulation (4) of regulation 21 of the Insolvency and Bankruptcy Board of India (Information Utilities) Regulations, 2017) This Record of Default is issued to the Financial Creditor M/s INDUSIND BANK LTD in respect of the default of debt as per details given below- (a) Name of the Submitter: M/s INDUSIND BANK LTD (b) Schedule-2 Bank (Y/N): Y (c) Name of Corporate Debtor: M/S COFFEE DAY GLOBAL LIMITED (d) Unique Debt Identifier Number: AAACI1314G_516003441349 (e) Registered Address: 425 DB MARG, LAMINGTON ROAD, MUMBAI (f) Total Outstanding Amount: 65387702.00 (g) Default Amount: 65387702.00 (h) Date of Default: 01-05-2020 (i) Status of Authentication of Default: AUTHENTICATED Filing of Default (Submission ID No.) (40) Submitted on 16-04-2023 11:58:26 Status of Authentication (Authenticated /Disputed/Deemed to be authenticated) AUTHENTICALED Colour Code :GREEN Authentication completed on 03-05-2023 10:20:05 NeSL is authorized to issue this record of default and has accordingly affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the financial information filed in respect of them. 2) Issuance of Annual Certificate to the Registered Users NeSL-IU will issue an Annual Statement to every Registered User, as per Reg 25 of IBBI Regulations of all information pertaining to the User at the completion of one year within a period of 15 days 3) Issuance of Record of Default, in Default Reported Loans 1.The norms for obtaining authentication of information of default and issuance of Record of Default by the Information Utility are governed by Regulation 21 of IBBI (IU) Regulations, 2017. 2.On Reporting of the Default by a Creditor (both Financial Operational) NeSL-IU expeditiously undertakes the process of authentication of information of default, by sending system generated e-mail intimation to the other parties to the Debt inviting them to verify and authenticate the information by affixing digital signature. 3.On completion of the process of authentication, NeSL records the status of authentication of information of default in its database and issues Record of Default (RoD) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 letters sent as above, after allowing 3 day s time, after the 3rd Reminder, the authentication status would be categorized as Authenticated for Financial Creditors which are Banks appearing in the Second Schedule of RBI Act and Deemed to be Authenticated for other Financial Creditors and Operational Creditors. (d)NeSL tracks the delivery of the RPAD letter sent to the Debtor and records it in its database. (e) In such Cases, Record of Default would be ready in 18-19 days from the date of reporting default to NeSL-IU. Scenario 4: In cases, where the attempts of NeSL-IU to reach the Debtor, by e-mails or RPAD letter for authentication of information of default, fail, the authentication status in such cases remains as To be presented category; and RoD would not be available. 6.General: The process of issuance of RoD from IU System is automated and once the process of authentication categorization is completed, the Registered User of the Creditor using his login credentials can download the RoD from IU system on his own, without the intervention of officials of NeSL. The procedure for downloading the RoD in a default reported loan i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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