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TMI Blog2017 (9) TMI 1615X X X X Extracts X X X X X X X X Extracts X X X X ..... ;IB Code 2016') r/w. Rule 4 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity, IB Rules 2016). 2. Before proceeding with this matter, it would be appropriate to make a note of background facts for the purpose of determination of this petition. 3. The Petitioner/FC is a Banking Company incorporated under the Companies Act, 1956 and now is a nationalised Bank having its Branch office at Indian Guindy Branch, No. 131, GST Road, Chennai-14 whereas the Respondent/CD is a Private Unlimited Company in the business of renewable energy sector, claiming to be India's first professional end-to-end renewable power infrastructure solution provider having its registered office at No. 480, Anna Salai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also given the Letter confirming deposit of title deeds and creation of equitable mortgage by borrowers & guarantors and also executed and registered memorandum of deposit of title deeds on various dates. The respondent and M/s. Trishe EPC P. Ltd. executed the Corporate Guarantee on 02.08.2013 guaranteeing the facilities availed by the Respondent/CD and Agreement of Guarantee dated 24.10.2013 was executed by M/s. Trishe Infrastructure Services P. Ltd. in favour of the petitioner. 7. It is further submitted that the respondent also executed the acknowledgement of Debt cum Security on 01.03.2016 to the petitioner acknowledging a sum of 18,70,45,042.04/- as outstanding in OCC Account and a sum of Rs. 23,80,46,584.18/- as outstanding in De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the Respondent/CD vehemently opposed the contentions raised by the counsel for petitioner and submitted that the instant petition is not maintainable in law and in facts as the same is premature and is liable to be rejected in limine. 12. It is submitted that the petitioner has filed an application under SARFAESI Act, 2002 in OA No. 379/2017 before the Hon'ble DRT - II, Chennai for the very same cause of action of recovery of the dues from the respondent and the DRT was pleased to issue summons to the respondent on 18.07.2017. He placed his reliance on section 10 of CPC submitting that it is well settled principle that any party to any proceeding cannot file two different applications before two forums against the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the Adjudicating Authority has to adjudicate the matters keeping in view the inherent power entrusted and principle of natural justice. It is further submitted that suit filed before the DRT and the petition filed before this Adjudicating Authority are on different footing as the OA filed before the DRT relates to recovery proceedings whereas the instant petition before this Adjudicating Authority pertains to initiation of Corporate Insolvency Resolution Process and declaring the Corporate Debtor insolvent. Moreover, if such a peculiar situation is permitted then the very authority of insolvency code will come at stake and there will be no finality of judgment. To further support his claim, the learned counsel relied on a recent jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is nothing but a moonshine defence. 17. As per the submission of the counsel for the petitioner, the Petitioner has complied with all the requirements as stipulated under the provisions of the IB Code, 2016 and the rules formed thereunder. 18. After hearing submissions of the counsel for the petitioner and respondent and having perused the record, this Adjudicating authority is satisfied that the petitioner has proved by placing overwhelming evidence viz. Agreement of Guarantee, Corporate Guarantee, Letter confirming deposit of title deeds, Acknowledgement of Debt cum Security, CIBIL Reports, OCC & LC Account Statements and entries in Bankers Book under the Bankers Books Evidence Act, 1891 that default has occurred which the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irected to take charge of the Respondent/Corporate Debtor's management immediately. He is also directed to cause public announcement as prescribed under Section 15 of the I & B Code, 2016 within three days from the date the copy of this order is received, and call for submissions of claim in the manner as prescribed. 22. I declare the moratorium which shall have effect from the date of this Order till the completion of corporate insolvency resolution process for the purposes referred to in Section 14 of the I & B Code, 2016. I order to prohibit all of the following, namely: (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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