TMI Blog2017 (9) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is not permissible as already observed. The 'Financial-Creditor' has proved by overwhelming evidence that default has occurred, which meets the requirement of Section 3(11) & 12 read with Section 7(3)(a) and Section 7(5) of the Code. The 'Corporate-Debtor' in fact has not disputed that it is in default of making repayments. We further find that the application is complete in all respects as the Insolvency Professional, Mr. Navneet Gupta, CA has also been proposed. This petition is admitted and Mr. Navneet Gupta, CA, #1598, Level-I, Sector 22-B, Chandigarh whose name also figures in the latest list of Insolvency Professionals issued by the Insolvency & Bankruptcy Board of India is appointed as an Interim Resolution Professional. In pursuance of Section 13 (2) of Code, we direct that public announcement shall be immediately made by the Interim Resolution Professional with regard to admission of this application under Section 7 of the Code, We also declare moratorium in terms of Section 14 of the Code - CP(IB) NO. 43(CHD)(PB)/2017 - - - Dated:- 4-8-2017 - MR. M.M. KUMAR AND MR. R.P. NAGRATH, JJ. For The Financial Creditor : Mr. Yogesh Goyal, Advocate And Mr. Gaur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an granted to the 'Corporate-Debtor' was ₹ 25,00,00,000/- (Rupees twenty-five crores only) with details of disbursement mentioned at Annexure A-3(colly). These are different term loans and working capital (cash credit facility). The Term Loan No. I was for ₹ 1300 crores; Term Loan No.ll for ₹ 4.50 crores; Term Loan No. III for ₹ 5.00 crores and CC limit of ₹ 2.50 crores. 6. The 'Financial-Creditor' has also relied upon various documents of loan. In respect of the Term Loan No. I, the documents are at Annexure A-9 to 15. Annexure A-9 is the loan application; the sanction letter dated 23.11.2006 Annexure A-10; resolution of Board of Directors of the 'Corporate-Debtor' of the year 2006 Annexure A-12; document of hypothecation of assets Annexure A-13 dated 01.12.2006; the agreement of term loan of December, 2006 Annexure A-14 and guarantee agreement Annexure A-15 (colly). 7. Similarly, various documents of Term Loan No. II are from Annexures A-16 to A-21 of the year 2011 and for Term Loan No. III at Annexures A-22 to A-28. In respect of the working capital loan the documents are from Annexures A-29 to A-33 comprising of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.07.2016 plus the interest w.e.f. 01.07.2018 and according to 'Financial-Creditor' the amount of default up to 30.04.2017 comes to ₹ 14,76,36,740.34. 10. When the matter was listed for the first time before the Tribunal on 11.07.2017 it was noticed that statements of account of the 'Corporate-Debtor' relied upon by the 'Financial-Creditor' were not certified under the Bankers' Books Evidence Act. Notice of this defect was issued to the petitioner and learned counsel for the petitioner present accepted the notice. It was directed to make compliance within a period of seven days. Notice of this petition was also directed to be issued to the respondent The 'Financial-Creditor' also filed fresh account statements duly certified under the Bankers' Books Evidence Act with the affidavit of Authorised Signatory of the bank. 11. The 'Corporate-Debtor' has also filed the objections in writing. It is stated that the petition deserves to be dismissed as the petitioner did not comply with paragraph-7 of Part-V of the application prescribed under the rules, requiring copies of the Entries in a Banker's Book in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n would not be maintainable without getting approval of the other two banks. We find no substance in this contention. The petitioner bank is undoubtedly a 'Financial-Creditor' qua the loans granted by it and entitled to make an application for initiating corporate insolvency process in terms of Section 7 (1) of the Code which reads as under- A financial creditor either by itself or jointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has been occurred. Explanation: For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. 15. The other submission of the 'Corporate-Debtor' that a proposal has been made to the petitioner bank requesting to restructure the loan by proposing to deposit ₹ 1,25,00,000/- cannot be accepted as the account of the petitioner has been declared N.P.A. whereupon recall notice dated 31.01.2017 (Annexure A-4) was issued. We are of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Banker's Books maintained in accordance with the Bankers Books Evidence Act, 1891 which the 'Financial-Creditor' had furnished but to make the said statements admissible per se necessary certificate was appended on the statements of account furnished with the affidavit dated 19.07.2017 of the Authorised Signatory of the bank as noticed in the order dated 11.07.2017. The requirement of the Paragraph 7 Part-V of Form No. 1 precisely isthat the bank has to file copies of the account statements which should be maintained as per the Bankers Books Evidence Act, 1891 and to attach copies thereof. The same were accordingly attached with the application originally. The 'Corporate-Debtor' being in default in depositing the financial debt was not in fact disputed rather attempt was made for restructuring of the loan by offering to deposit an amount of ₹ 125 lacs which is not permissible as already observed. 19. In view of the above discussion and perusal of the record, we are satisfied that the 'Financial-Creditor' has proved by overwhelming evidence that default has occurred, which meets the requirement of Section 3(11) 12 read with Section 7(3)(a) an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
