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TMI Blog2017 (6) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... d distribution of electricity. Pursuant to its objects and for putting up a electricity generation plant in Arunachal Pradesh it had approached the Financial Creditor for multiple credit facilities in the form of term loan as well as non-fund based facilities as supplement to term loan. Request for financial facilities by the Corporate Debtor was accepted by the Financial Creditor vide sanction letter dated 30.7.2010, which comprised of term loan to the extent of Rs. 200 crores and non-fund based loan facilities of Rs. 100 crores and the sanction was valid for a period of 6 months with pre disbursement conditions as detailed in the sanction letter. Since the pre-disbursement conditions were not met by the Corporate Debtor, request to extend the validity of the sanction letter dated 30.7.2010 was sought by the Corporate Debtor vide letter dated 30.1.2011 and 1.2.2011. On 11.4.2011 based on the request of the Corporate Debtor for urgent project implementation expenses, a sum of Rs. 200 crores for a duration of 6 months was sought by the Corporate Debtor from the Financial Creditor, and acceding to the said request of the Corporate Debtor, as compared to the earlier sanction letter, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly sanction, it is claimed by the Financial Creditor, was further revised as follows: Term loan Rs.200 crores Non-fund based financial facilities Rs.100 crores Short-term loan Rs.200 crores Despite the above revised sanction letter dated 12.03.2012 by the Financial Creditor, Corporate Debtor failed to repay the loan availed by it as a short-term loan and instead sought for extension of time for repayment of the same vide letters dated 14.06.2012, 21.06.2012 and 4.7.2012. Heeding to the repeated request of the Corporate Debtor, the Financial Creditor it is averred, had conditionally accepted the request and the time limit for repayment was extended up to 28.02.2013 upon the execution of the additional securities. However, instead of repaying the amount within the extended period, Corporate Debtor vide letter dated 25.02.2013 sought for another extension for a period of 2 months up to 31.05.2013 in order to enable it to repay the short term loan. The Financial Creditor, taking into consideration the above request of the Corporate Debtor for further extension, granted time till 28.02.2014 for repayment of the short-term loan and for early closure of the conditions prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the Corporate Debtor and since the amount owed and defaulted is in excess of Rs. 1,00,000/-, it is contended that the Petition is maintainable under the provisions of IBC. 5. It is also submitted by the Financial Creditor that it has also initiated in OA No.218 of 2016 titled as 'Indian Bank' v. Athena Demwe Power Ltd. for recovery of the amounts due under the provisions of recovery of Debts Due to Banks and Financial Institutions Act, 1993 before DRT-I, New Delhi claiming a sum of Rs. 284,35,10,320.52 as on 5.5.2016 against the Corporate Debtor and others and the same is pending disposal. 6. The Financial Creditor, it is seen has filed the necessary application under Form-I to initiate CIRP under IBC, 2016 read with Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity AAA Rules). In view of the default as narrated above it is claimed, proceedings herein have been preferred and an Interim Resolution Professional as mandated has also been named as one Mr. Anil Kohli, duly registered Insolvency and Bankruptcy Board of India (IBBI), and who, it is claimed, has also submitted his consent to act as an Interim Resolution Professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record as filed by the Financial Creditor is constrained to reach the following conclusions based on pertinent facts relevant to the present proceedings :- 9. The Corporate Debtor seems to have been incorporated originally as Athena Demwe Power Private Limited on 03.08.2007 and subsequently on and from 17.12.2010 had changed its name to Athena Demwe Power Limited, all of which are evidenced from the Fresh Certificate of Incorporation. Consequent upon change of name on conversion into public limited company by the Corporate Debtor, issued by the Registrar of Companies, NCT of Delhi and Haryana dated 29.03.2010. It is pertinent to note that the address of the registered office as reflected in the Fresh Certificate of Incorporation dated 29.03.2010 issued by ROC, NCT Delhi is given as 1st Floor NBCC Tower, 15 Bhikaji Cama Place, New Delhi 110 066 and the said address is also reflected in the Certificate of Registration of Charges of Assets detailed in the certificate under Section 132 of the erstwhile provisions of the Companies Act, 1956 dated 21.06.2010 issued by ROC, NCT of Delhi & Haryana in favour of the Financial Creditor. 10. Further a perusal of all the documents annexed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by registered post or speed post to the registered office of the corporate debtor (Italics supplied). In the absence of any material or document to demonstrate that the registered office of the Corporate Debtor having been shifted from 1st Floor NBCC Tower, 15 Bhikaji Cama Place, New Delhi 110 066 to any other address, particularly to the address as claimed to be registered office address by the Financial Creditor in the application, we are constrained to hold that the application has not been properly served on the Corporate Debtor and that we consider basically explains the absence of the Corporate Debtor before us, more so, when according to the records produced by the Financial Creditor, the Corporate Debtor seems to be defending its cause in the proceedings pending before DRT I, Delhi as manifest vide order dated 01.03.2017 passed in O.A.218 of 2016. 13. It is also pertinent to note that in Company Appeals (AT)(lns) No.31 of 2017 in the matter of Era Infra Engg. Ltd v. Prideco Commercial Projects (P.) Ltd, the Hon'ble NCLAT has laid down, albeit in the case of an "Operational Creditor' that in view of the mandatory provision under Section 8 of the I & B Code read with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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