Feedback   New User   Login      
Tax Management India. Com TMI - Tax Management India. Com
Acts / Rules Notifications Circulars Tariff/ ITC HSN Forms Case Laws Manuals Short Notes Articles SMS News Highlights
        Home        
Extracts
Home List
← Previous Next →

Bank of Baroda Versus Amrapali Silicon City Pvt. Ltd.

2017 (10) TMI 515 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI

Corporate insolvency procedure - Held that:- Form and manner of the application has to be the one prescribed by the authorities. It is required to be accompanied by the prescribed fee. It is further evident that if the application is incomplete as per the requirement of Section 7(2) of the Code then this Tribunal being the Adjudicating Authority may reject it. However, proviso to Section 7(5) of the Code postulates that before rejecting the application on the ground that it is incomplete in term .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ted as an Interim Resolution Professional. He has filed his certificate of registration with Insolvency and Bankruptcy Board of India. He has also filed his written communication dated 04.08.2017 in connection with the application to initiate Corporate Insolvency Resolution Process. The disclosure has been made in the letter dated 04.08.2017. - In pursuance of Section 13(2) of the Code we direct that public announcement shall be made by the Interim Resolution Professional within the statutor .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

#39;-Bank of Baroda has filed the instant application 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 Amrapali Silicon City 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d 03.02.2017 (Exhibit- 1) 3. The Corporate Debtor-Amrapali Silicon City Private Limited was incorporated on 20.02.2010. Its authorised share capital is ₹ 2,00,00,000/- (Rupees Two Crores) and the paid up share capital is ₹ 1,03,69,820/- (Rupees One Crore Three Lakhs Sixty Nine Thousand Eight Hundred and Twenty) as per the master data available on the website of Ministry of Corporate Affairs. It has its registered office also at Delhi. 4. The financial creditor has proposed the name o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

#39;Financial Debtor' namely Amrapali Silicon City Private Limited nor he is an employee of the Amrapali Silicon City Private Limited. 5. The details of the 'financial debt' may now be set out. There was a term loan agreement dated 25.02.2012 (Exhibit-3) executed between the financial debtor and consortium banks which include the financial creditor-Bank of Baroda, Oriental Bank of Commerce and Bank of Maharashtra. In pursuance of the aforesaid agreement the consortium banks along wit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

59,38,00,000 (Rupees Fifty Nine Crore Thirty Eight Lakhs). In addition, the default amount towards the overdue interest and penal interest aggregates to ₹ 11,77,43,681 (Rupees Eleven Crore Seventy Seven Lakhs Forty Three Thousand Six Hundred Eighty One). The corporate debtor defaulted the term loan in March, 2016. Further details of the defaulted amount and the period of default have been disclosed (Exhibit-5). The total amount of default under the term loan facility has been further accel .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

age by deposit of title deeds of the immovable properties located by Plot No.- GH - 01/A, Sector - 76, Noida, Uttar Pradesh, along with the building and structures thereon as detailed in Exhibit - 6 ( Immovable Property ); (b) First charge on a pari-passu basis by way of hypothecation of all the movable assets of the Corporate Debtor including but not limited to the raw materials, work in progress etc., both present and future; (c) First floating charge on a pari-passu basis by way of hypothecat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t charge on a pari-passu basis by way of assignment or creation of security interest of all the rights, title, interest, benefits, claims and demand whatsoever of the Corporate Debtor: (i).................. (ii)................. (iii)................ (iv)................. (v)................. (f) first charge on the profits of the Corporate Debtor after provision for taxation. The copies of certificate of registration of charges issued by the Registrar of Companies with respect to the aforementi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ted February 25, 2012 (the Deed of Hypothecation ) executed by the Corporate Debtor in favour of the BoB consortium has been annexed herewith at Exhibit - 9. 7. The following Corporate Guarantors have furnished the Corporate guarantees:- (a) Ultra Home Construction Private Limited; (b) Rinku Clothing Creations Private Limited; (c) Jotindra Steels and Tubes Limited; and (d) Vidhya Shree Buildcon Private Limited All of them have guaranteed the obligation of the corporate debtor under the loan agre .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hibit-11). 9. The estimated value of the aforementioned securities (except the corporate and personal guarantees) is approximately ₹ 13,23,49,84,000 (Rupees One Thousand Three Hundred and Twenty Three Crores Forty Nine Lakhs and Eighty Four Thousand). A copy of the valuation report has also been placed on record (Exhibit - 12). 10. The copies of the loan agreement and the sanction letter along with letter dated 24.06.2016 conveying modification/re-fixing of loan instalments have been place .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

her documents to the application to prove the financial debt, the total amount due and the date of default. Those documents are as under:- (a) A copy of Acceleration Notice dated March 6, 2017 by BoB to the 'Corporate Debtor' calling upon the 'Corporate Debtor' 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 reply by 'Corporate Debtor' dated April 4, 2017 to aforementioned .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

gement letters dated February 15, 2015 and February 16, 2015 acknowledging indebtedness of the 'Corporate Debtor' to BoB. The copies of the aforementioned documents proving existence of 'financial debt' have also been annexed (Exhibit - 15, 16, 17, 18, 19 and 20). 13. The application has been duly presented by Ms. Archana Mishra on the basis of authorization dated 03.02.2017 (Exhibit-1). 14. The 'corporate debtor' has opposed the admission of the application by arguing th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

agreement. The application even otherwise is incomplete and the same is liable to be rejected. A reference has been made to the provisions of Section 7 (5) (a) of the Code in as much as the question has been raised with regard to the authority of Ms. Archana Mishra from Bank of Baroda who is authorized by Power of attorney dated 03.02.2017to file the present application. According to the learned Counsel Ms. Archana Mishra would have the same power and authority which were conferred upon Mr. Ravi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

stitute and appoint one or more Attorney or Attorneys to exercise for the Bank of Baroda as its attorney. Accordingly, Shri Thakral has executed Power of Attorney in favour of Mrs. Archana Mishra on 03.03.2017 (pp. 17-23). Clause 19 thereof clearly authorized the power of attorney to sign on behalf of the Bank all matters incidental to or arising out of the bankruptcy or insolvency or any composition or arrangement with the creditors. In pursuance thereof, she has signed power of attorney, plead .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

otice. Even this objection will not survive because a perusal of the CIBIL report dated 28.02.2017 mention the same figure of default namely ₹ 59,38,00,000/- (Rupees Fifty Nine Crore Thirty Eight Lakhs) and the element of interest amounting to ₹ 11,77,43,681 (Rupees Eleven Crore Seventy Seven Lakhs Forty Three Thousand Six Hundred Eighty One) is not required to be reflected. It clearly mentions the account to be substandard. Likewise, in the Bankers Book (Exhibit-14) same amount has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t been obtained. The objection would not require any serious consideration because Explanation to section 7(1) 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. 16. The respondent has also made an attempt to highlight that the group housing proje .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d that the aforesaid stipulation has found further strength from the RERA Act. The project is likely to be completed in year 2021. To start with there would be construction of 6000 flats by December 2017. The 'corporate debtor' is to handover possession of 900 flats to the respective flat buyers in 2018 and another 900 flats would be handed over in the year 2019 and remaining 2200 flats shall be constructed and delivered by 2021. The delay has been caused on account of the order dated 07 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

herefore, this objection too would not cut any ice. 17. The New Okhla Industrial Development Authority has filed an application for intervention under Rule 32 of the NCLT Rules, and has placed on record a copy of the lease deed executed between the 'Corporate Debtor' and the New Okhla Industrial Development Authority. 18. The question which arises for consideration is whether the petitioner has been able to satisfy the requirement of Section 7 of the Code. According to Explanation append .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hether the default has occurred, it will be profitable to read Section 3(12) of the Code 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 eminently come on record that the 'default' has occurred many a times. The initial date of default by the 'corporate debtor' in accordance with the term loan facilit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

) and the repayment of the defaulted amount was required to be made within seven days from the date of acceleration notice. The principal defaulted amount in most documents is the same. However, in one of the documents it may vary as the calculation has been made for different dates. Therefore, it would not be a material factor warranting the dismissal of the application. Any objection to the amount of default shall remain available to the 'corporate debtor' before the 'Committee of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application: Provided that the Adjudicating Authority shal .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uirement of Section 7(2) of the Code then this Tribunal being the Adjudicating Authority may reject it. However, proviso to Section 7(5) of the Code postulates that before rejecting the application on the ground that it is incomplete in terms of Section 7(2) of the Code the Tribunal is obliged to give notice to the applicant to rectify the defect in his application. The defect in the application needs to be removed within seven days from the date of receipt of notice. 22. For the reasons, aforem .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cy Resolution Process. The disclosure has been made in the letter dated 04.08.2017. 23. In pursuance of Section 13(2) of the Code we direct that public announcement shall be made by the Interim Resolution Professional within the statutory period 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. Some necessary consequences of imposing the moratorium flows from the, provisions of Section 14 (1) (a), (b), (c) &am .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Discussion Forum
what is new what is new
 


Share:            

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version