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TMI Blog2018 (9) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... y has been empowered to sign and submit the petition by the Board Resolution dated 01.05.2018 (Annexure-2). 3. The Corporate Debtor-Shreedhar Milk Foods Limited is a company registered under the provisions of the Companies Act, 1956 and was incorporated on 17.11.2005. It is pertinent to mention here that the Corporate Debtor was incorporated originally in the name and style of A Kumar Milk Foods Private Limited and subsequently its name was changed to Shreedhar Milk Foods Limited. The identification number of the Corporate Debtor is U74899DL2005PLC142604 and its registered office is situated at 632/7, 2nd Floor, Khari Baoli, Delhi - 110006. Its authorized share capital is Rs. 13,50,00,000/- and the paid up share capital is Rs. 13,23,19,610/- which is based on the details given in master data obtained from the official website of Registrar of Companies. 4. The Financial Creditor has proposed the name of Shri Manoj Sehgal, Flat No. 304, Tower 5, Ansal Valley View Estate, Gwal Pahadi, Gurgaon, Haryana-122003. He has registration No. IBBI/IPA-002/IP-N00108/2017-18/10256. A written communication dated 19.05.2018 made by Mr. Sehgal in terms of Rule 9(1) of the Insolvency and Bankruptcy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... list of security cheques given by the Corporate Debtor (Annexure-6). 9. The 'Financial Creditor' has then attached a list of other documents to the application to prove the financial debt, the total amount due and the date of default. Those documents are as under:- 1) A copy of loan agreement dated 11.09.2015 executed between Pankhuri Investments and Securities Limited and Shreedhar Milk Foods Limited is being annexed herewith and marked as Annexure-7. 2) A copy of letter dated 01.05.2018 sent by PISL to M/s. Shreedhar Milk Foods Limited, for recalling the loan facility and for payment of Rs. 2,03,60,000/- within 7 days is being annexed herewith and marked as Annexure-8. (3) A copy of email dated 18.05.2018 written by Corporate Debtor to the Financial Creditor is being annexed and marked as Annexure-9. 10. The Corporate Debtor has filed the detailed reply to the application and has raised a number of objections on various counts. We are not extracting the objections raised in the written statement at this stage because detailed reference to those objections has been made while dealing with the arguments of the learned counsel for the Corporate Debtor to avoid repetition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 2,00,00,000/- along with interest which is payable and due by the Corporate Debtor. Otherwise also learned counsel for the Financial Creditor has placed reliance on the observations made by this Bench in para 14 of the judgment rendered in the case of Bank of India v. Tirupati Infraprojects (P.) Ltd. [C.P. No. (IB)-104(PB)/2017 decided on 3-7-2017]. This Bench has observed that if there was any discrepancy in calculation then it does not materially affect the admission of the such application. We have observed that the Adjudicating Authority is not entrusted with any function to determine the amount of default and once the default has occurred involving rupees one lakh or more in terms of Section 4 of IBC then one of the requirements for initiating the insolvency process stand satisfied. The objection of this nature concerning discrepancy in calculation of the amount would surely be maintainable before the Committee of Creditors. It was further observed that once default in terms of Rule 3(12) of IBC is established and all other requirements are fulfilled then the Corporate Insolvency Resolution Process must be triggered. Therefore, dispute concerning the discrepancies in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which manner same would be cleared and if the said intention is based on so many 'ifs and buts' then the Financial Creditor cannot be compelled to accept the terms of proposal. Even otherwise such a proposal must be the result of free violation. A due diligence is proposed to be conducted in such type of cases and till date there is no concreate proposal in place. However, if the Corporate Debtor is confident about the investment from the strategic investor or otherwise, the same could be examined by the Committee of Creditors of the Corporate Debtor along with Interim Resolution Professional after admission of the present petition. Even this petition could be withdrawn after admission if requirement of amended provisions of the Code are fulfilled. Further such type of objection raised by the 'Corporate Debtor' has been noticed to highlight their wish. However, the fact remains that till date substantial outstanding amount in default is payable by the 'Corporate Debtor'. Therefore, this objection too would not cut any ice. 15. Another argument raised by the Corporate Debtor is that as per Part V of the Form 1 of IBC Rules, the Financial Creditor has to file copies of entries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other assets of 25 Milk Chilling Centers along with Village Collection Centers attached to the Milk Chilling Centers which are owned, possessed & purchased by the Corporate Debtor from the said credit facility. The Corporate Debtor failed to pay their dues as per the terms of agreement and the repayment schedule as agreed. Thereafter the Bank left with no option in hand acting as the Lead Bank and on behalf of other consortium member banks issued a notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to the Corporate Debtor on 31.03.2018 calling upon the Corporate Debtor to discharge in full its liabilities. The Punjab National Bank in fact supporting the cause of the 'Financial Creditor'. 17. It is relevant to mention that vide order dated 24.07.2018, on an application C.A. No. 634(PB)/2018 filed on behalf of the Financial Creditor, directions were issued to the Corporate Debtor not to dispose of any of the equipments installed at the Milk Chilling Centres. 18. Now we deal with the submissions made on behalf of the applicant-Financial Creditor. 19. Learned Counsel for the petitioner has argued tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, we direct that Interim Insolvency Resolution Professional shall immediately make public announcement with regard to admission of this application under Section 7 of the Code. The expression 'immediately' means within three days as clarified by Explanation to Regulation 6 (1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 24. We also declare moratorium in terms of Section 14 of the Code. A necessary consequence of the moratorium flows from the provisions of Section 14(1)(a), (b), (c) & (d) and thus the following prohibitions are imposed which must be followed by all and sundry: "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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