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TMI Blog2017 (8) TMI 1478X X X X Extracts X X X X X X X X Extracts X X X X ..... s Registered Office at Magdalla Village, Opp. Dumas Road, Dist. Surat. Authorised share capital of M/s. ABG Shipyard Limited, is Rs. 170,00,00,000/-. Paid up share capital of the company is Rs. 201,50,46,640/-. 3. Financial creditors granted several loan facilities to the corporate debtors under Master Restructuring Agreement (MRA) dated 28.03.2014, the first amendment agreement to MRA dated 30.07.2014, and 2nd amendment agreement dated 09.09.2014. 4. Corporate debtor executed the following guarantee deeds in favour of the financial creditor (1) Guarantee deed dated 27.06.2012 (2) Guarantee deed dated 28.06.2012 (3) Guarantee deed dated 13.04.2012 5. All the above guarantees are in respect of capital facilities granted to PFS Shipping (India) Ltd. in respect of working capital facilities made available to Western India Shipyard Limited and Varada Ventures Pte Limited respectively. 6. Corporate debtor executed following letters of comfort in favour of following units. (1) Letter of comfort dated 18.04.2011 in respect of facilities to Global Bulk Carriers Pte Ltd. (2) Letter of comfort dated 31.08.2010 in respect of facilities to Varada Marine Pte. Ltd. 7. However, financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of default for all the above mentioned facilities is October 20, 2016 The Total amount claimed as on June 21, 2017 is Rs. 4291.90 crores. The table containing the details of the computation of the amount of default on the part of the Corporate debtor, the dates of default and the number of days of default under the restructured facilities is annexed to application as Exhibit "5" 9. Financial creditors further stated that the corporate debtors executed several security documents mortgaging the immovable properties for the facilities enjoyed by it. That are summarised here below:- 1) Rupees term loan facility to the tune of Rs. 170,00,00,000 (Rupees One Hundred and Seventy Crores Only) ("Term Loan - 1") (this facility also involves certain FCNR(B) facilitates), as has been set out in Schedule IV of the MRA. 2) Rupees term loan facility in FCNR (B) to the tune of Rs. 49,60,00,000 (Rupees Forty-Nine Crores Sixty Lakhs Only) ("Term Loan-2"), as has been set out in Schedule IV of the MRA. 3) Rupees term loan facility to the tune of Rs. 33,15,00,000 (Rupees Thirty-Three Crores Fifteen Lakhs Only) ("Priority Loan I"), as has been set out in Schedule V of the MRA. 4) Rupe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule XVI to the MRA; (vii) Restructured funded interest term loan facility of Rs. 3,10,00,000 (Rupees Three Crores and Ten Lakhs Only) ("FITL Facility-VIII"), as set out in Schedule XVI to the MRA; and (viii) Restructured funded interest term loan facility of Rs. 8,80,00,000 (Rupees Eight Crores and Eighty Lakhs Only) ("FITL Facility-IX"), as set out in Schedule XVI to the MRA; (The above mentioned funded interest term loan facilities are collectively referred to as the "FITL Facilities") 8) Restructured fund based working capital facilities to the tune of Rs. 865,00,00,000 (Rupees Eight Hundred and Sixty Five Crores Only) ("Restructured Working Capital Facilities (fund based)". The details of the Restructured working Capital Facilities (fund based) have been set out in Schedule IV of the MRA. 9) Restructured non-fund based working capital facilities to the tune of Rs. 2035,00,00,000 (Rupees Two Thousand and Thirty Five Crores) (being an aggregate of Rs. 1885,00,00,000 (Rupees One Thousand Eight Hundred and Eighty Five Crores Only) under the MRA in addition to Rs. 150,00,00,000 (Rupees One Hundred and Fifty Crores Only) under the First Amendment to MRA) ("Restructured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. (the above mentioned deeds of guarantees are hereinafter referred to as "ABG Guarantees") The various letters of comfort issued by the Corporate Debtor in favour of the Financial Debtor are as follows: (i) Letter of Comfort dated April 18, 2011 in respect of facilities amounting to USD 70.7 Million (USD Seventy Million and Seven Hundred Thousand Only) to Global Bulk Carriers Pte Ltd. under Facility Agreement dated March 31, 2011. (ii) Letter of Comfort dated August 31, 2010 in respect of facilities amounting to USD 82.2 Million (USD Eighty Two Million Only) to Varada Marine Pte. Ltd. under the facility Agreement dated August 31, 2010. (the above mentioned letters of comfort are hereinafter referred to as the "ABG Letters of Comfort") The ABG Guarantees and the ABG Letters of Comfort have not been invoked as of yet. The Financial Creditor has the right to invoke the ABG Guarantees and the ABG Letters of comfort as per the terms thereof. The table containing details of the total amount of debt disbursed and the dates of disbursements of the various Restructured Facilities has been annexed herewith at Exhibit - "4". Note: For purpose of this application, the tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the submission of the advocate for ICICI Bank, adjourned the matter to 16.08.2017. 18. Respondent corporate debtor filed reply dated 27.07.2017. In the reply, corporate debtor stated that the total debt outstanding under the facilities granted by the financial creditor under restructuring agreement as on 21.06.2017 stands at Rs. 4291.90 crores. Corporate debtor further stated that nonpayment is on account of unavoidable reasons including inter alia global downfall in the shipping industry. It is also stated that certain ship building contracts for some vessels were cancelled resulted in paucity of working capital. It is stated by the corporate debtor that Corporate Insolvency Process would help both the company, its employees and possibility of reviving the company's business. 19. Financial creditors filed this application under Section 7 of the Code for initiating Corporate Insolvency Resolution Process. Hon'ble National Company Law Appellate Tribunal in company appeal No. (AT)(Insolvency) No. 1 & 2 of 2017 in the matter of M/s. Innoventive Industries Ltd. vs. ICICI Bank & Anr. held as follows:- "As discussed in the previous paragraphs, for initiation of corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentation of the financial creditors, Hon'ble High Court adjourned the matter to 16.08.2017. 22. In these circumstances it is clear that although Hon'ble High Court of Gujarat admitted winding up petition, no winding up order has been passed and no provisional liquidator has been appointed. 23. Now the controversy is that, in view of the pendency of winding up petition CP No. 375 of 2016 whether this Tribunal can entertain and pass order in this petition. In view of the fact that, no winding up order has been passed and no provisional liquidator has been appointed in company petition 375 of 2016 by Hon'ble High Court of Gujarat, section 446 of the Companies Act, 1956 is not applicable. In view of clause (a) of sub-section (i) of section 14 of the Code of proceedings against corporate debtor shall stand stayed on the commencement of insolvency resolution process. In view of section 238 of the code the provisions of insolvency code shall have overriding effect over any other law which is inconsistent with the provisions of this code. This adjudicating authority in CP (IB) 48 of 2017 in case of Alok Industries Ltd. also took the same view. 24. The financial debtor i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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