TMI Blog2017 (10) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... vency and Bankruptcy Code, 2016 (for brevity the Code') with a prayer to trigger the Corporate Insolvency Resolution Process in the matter of Ultra Home Construction Private Limited. It is appropriate to mention that the financial creditor is a body corporate constituted by and under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (for brevity 'Banking Companies Act'). The 'financial creditor' had its head office at Baroda House, Mandvi, Baroda, Gujrat. It was incorporated on 02.03.1911 and subsequently constituted as a corresponding new bank on commencement of the Banking Companies Act. The permanent account number of the financial creditor is AAACB1534F and its branch office is at Corporate Financial Services Branch, 1st Floor, Bank of Baroda Building, 16, Parliament Street, New Delhi-110001. 2. The holder of Power of Attorney dated 16.12.2015 Shri Ravi Kant Thakral has been vested with the power to appoint counsel and authorized any officer to sign on behalf of the 'Financial Creditor-Bank of Baroda'. Accordingly, Ms, Archana Mishra has been authorized by the letter dated 03.02.2017 (Exhibit - 1). 3. The Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details of the security interest have been given in Part V which are set out below:- (a) A first pari-passu charge by way of equitable mortgage on all the project's immovable properties, both present and future, including any furniture, fixture and equipments thereon ( Immovable Property ) as detailed in Exhibit - 6; (b) A first pari-passu charge and hypothecation on all the movable properties including all receivables and intangible properties except judicial/quasi judicial permissions and permits both present and future; (c) A first pari-passu charge on all the project's bank accounts including, but not limited to, trust and retention account; (d) A first pari-passu charge on the operating cash flows, book debts, commissions, intangibles, goodwill, uncalled capital, revenues of whatsoever nature and wherever arising, and all other incomes pertaining to the project's present and future; (e) Security interest by way of assignment of all the rights, titles, permits, approvals and interests of the Corporate Debtor in, to and in respect of all the clearances, agreements, permits, approvals, consents in relation to the project including proceeds of insurance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; to repay the default amount within seven days of the date of the notice and reply of the 'Corporate Debtor' to the Acceleration Notice; (b) A copy of reporting of the account of the 'Corporate Debtor' as SMA - II account with the Central Repository of Information on Large Credits (CRILC); (c) A copy of the acknowledgement letter dated August 4, 2015 by the 'Corporate Debtor' to BoB; and (d) Copies of the letters dated August 17, 2016 and September 26, 2016 by BoB to the 'Corporate Debtor' indicating persistent overdues. The copy of the aforementioned documents proving existence of 'financial debt' and default have also been annexed (Exhibit - 12, 13, 14 and 15). 11. The application has been duly presented by Ms, Archana Mishra on the basis of authorization dated 03.02.2017 (Exhibit-1). 12. The 'corporate debtor' has opposed the admission of the application by arguing that the demand of ₹ 36,88,94,153/- is wholly arbitrary. The applicant is part of consortium of banks and the common loan agreement was executed for providing a term loan of ₹ 288,00,00,000/-. In the said agreement the Bank of Baroda, Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would show that the same amount has been worked out under the column 'balance' as on 18.05.2017 namely ₹ 31,92,31,627 (Rupees Thirty One Crore Ninety Two Lakhs Thirty One Thousand Six Hundred and Twenty Seven). In any case the 'Corporate Debtor' would be entitled to raise objection of any mismatching before the Committee of Creditors. It was then submitted that consent from other members of consortium has not been obtained. The objection would not require any serious consideration because Explanation to section 7(1) expressly clarifies that for the purposes of section 7 a default includes a default in respect of financial debt, owed not only to the applicant-financial creditor but to any other financial creditor of the Corporate debt. Moreover, no other financial creditor has come to the forefront to oppose the application. 15. The respondent has further stated the land in question is not owned by the 'corporate debtor'. As a matter of fact, the land is owned by Noida Authority. The 'corporate debtor' has issued a lease, which is governed by various covenants. The covenants include the provisions of cancellation of the lease and to take over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which states that default means non-payment of debt when whole or any part of the instalment of the debt has become due payable and the same has not been repaid by the 'Corporate Debtor'. In the present case, it has come on record eminently that the 'default' has occurred many a times. The initial date of default by the 'corporate debtor' in accordance with the common loan facility is 30.06.2016 (Exhibit-5). The computation of defaulted amount and the date of default is as under:- Sr. No. Facility Total overdue at 30th April], 2017 (Principal + Interest + Overdue Interest) (INR) Date of Default Days of Default RTL Facility ₹ 36,88,94,153 (31,92,31,627+2,28,00,753+2,68,61,773) 30-6-2016 304 days Total ₹ 36,88,94,153 19. The default has again occurred when a demand notice dated 02.03.2017 was issued (acceleration notice) (Exhibit-12) and the repayment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defect in the application needs to be removed within seven days from the date of receipt of notice. No such situation has arisen and we find that application is complete in all respects. 21. The 'financial creditor' has proposed the name of Mr. Rajesh Samson as an Insolvency Professional but subsequently after reserving the order, an application bearing C.A. No. 340(PB)/2017 was filed by the 'Financial Creditor' withdrawing the name of earlier proposed Insolvency Professional namely Mr. Rajesh Samson and in his place name of Mr. Sanjay Gupta was proposed as Insolvency Professional. A certificate of registration dated 30.06.2017 issued to Mr. Sanjay Gupta by the Insolvency and Bankruptcy Board of India has already been placed on record- He has registration No. IBBI/IPA-001/IP-POO 117/2017-18/10252. He has also made declaration and sent a written communication dated 03.08.2017. According to the declaration made by Mr. Sanjay Gupta, no disciplinary proceedings are pending against him nor he is a related party to 'Financial Debtor' namely Ultra Home Construction Private Limited nor he is an employee of the Ultra Home Construction Private Limited. 22. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. 26. The Interim Resolution Professional shall perform all his functions contemplated, interalia, by Sections 15, 17, 18, 19, 20 21 of the Code. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the day to day affairs of the 'Corporate Debtor'. In case there is any violation, the Interim Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional shall be under duty to protect and preserve the value of the property of the 'Corporate Debtor' as a part of its obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code. 27. The intervener shall be at liberty to file any clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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