TMI Blog2017 (3) TMI 1707X X X X Extracts X X X X X X X X Extracts X X X X ..... Form 2 is hereby appointed as the Interim Resolution Professional to exercise all powers and subject to all duties as contemplated under the provisions of the IBC. - Company Petition No. (IB)23/PB/ 2017 - - - Dated:- 31-3-2017 - (Retd.) Shri M.M.Kumar And Shri R.Varadharajan, JJ. Mr. Abhirup Dasgupta For The Petitioner. Mr. Abishek Singh For Respondent. ORDER Brief facts as averred by the petitioner in filing this petition under Section 7 of the Insolvency Bankruptcy Code, 2016 ( for brevity IBC) are as follows:- 1. The petitioner ( for brevity the Financial Creditor ) is an Asset Reconstruction Company incorporated under the provisions of the Companies Act, 1956 on 19.09.2002 having its registered office at New Delhi. The respondent (for brevity the Corporate Debtor ) is again a company registered under the provisions of Companies Act, 1956 on 06.10.1986 having its registered office at C-21 and C-22, Vaishali Nagar, Jaipur, Rajasthan - 302 201. 2. The 'Corporate Debtor', on 04.01.2008, was sanctioned a Term Loan of Rs.24 crores and a Cash Credit Limit of ₹ 1 Crore by State Bank Of India (for 'SBI'). Pursuant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by DRAT is under challenge before the Hon'ble High Court of Delhi in W.P.(C) No.11814 of 2015 and it is pointed out by the Learned Counsel for the Petitioner that vide order dated 16.12.2016 the Hon'ble High Court had unequivocally stated as follows:- The pendency of the writ petition will not prevent the petitioners from issuing a fresh notice under Section 13(2) of the SARFAESI Act . 7. Keeping in view the above order, the Learned Counsel for the Financial Creditor represents that another notice under Section 13(2) has been issued by it on 01.02.2017. Learned Counsel for the Financial Creditor painstakingly took us through the typed set filed on behalf of the Financial Creditor to demonstrate that the debt has been repeatedly acknowledged by the Corporate Debtor in its audited accounts as well as the fact of assignment and in this connection pointed out that in the audited financial statements for the year 2013-14 the auditors have given a qualified opinion which reads as follows:- BASIS FOR QUALIFIED OPINION 1) Financial Statements have been prepared on going concern basis in spite of notice issued by ALCHEMIST ARC dated 21.07.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company on 22.07.2013 to recover its dues of Rs. 39,69,10,137.88/- However, the State Bank of India informed vide letter No.SAMB/CL/l/42 dated 04.04.2014 that he has absolutely assigned all the rights, title and interests in financial assistance granted by him to the company, in favour of Alchemist Asset Reconstruction Company Ltd. (Alchemist ARC), vide assignments agreement dated 20.03.2014. The company received notice u/s 13(2) read with 13(13) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) dated 21.07.2014 for the amount of ₹ 45,34,13,224/- (outstanding balance as certified by the management of the company as at 31.03.2014 is In case the settlement does not come in force or settled at the higher amount more than shown in the balance sheet then that difference amount will be contingent liability which will be not more than ₹ 17,20,29,058.39 as at 31.03.2014. 9. Taking into consideration the records produced it is submitted by the Learned Counsel for the Financial Creditor that the Corporate Debtor is heavily indebted not only to it but also to other Secured Creditors as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Kanwar v. AMR Infrastructure (CP(IB) No.06/2017) decided on 16.02.2017 and Tomorrow Sales Agency Pvt. Ltd Vs. Raipur Power and Steel Ltd Ors (C.P.No. (1B) - 09(PB)/2017) decided on 23.02.2017. Taking into consideration the above decisions and the overwhelming evidence placed before us to establish the claim of the Financial Creditor in our view it is, prima facie established that the Corporate Debtor is heavily involved in debts as at present it is not able to service even the interest component, leave alone the repayment of the principal amount due to the Financial Creditor. It is also evident from Annexure P 16 filed by the Financial Creditor which is extracted from MCA portal relating to Corporate Debtor which relates to charges registered. It reveals that there are other Financial Creditors as well, to whom amounts are owed. However from Annexure P 16 it is further seen that in relation to some of the loans for which the properties of the Corporate Debtor had created charges have been satisfied as recently as 27.04.2016 evidencing that the Corporate Debtor is having cash flow and is in a position to service loans. However in relation to the Term Loan taken o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) of assignor Bank and becomes borrower(s) of assignee bank. In view of the above position of law we are unable to appreciate the contentions of the Corporate Debtor. It is also to be noted that for invoking the provisions of Section 13(2) of SARFAESI Act, NPA may be a criteria but in relation to unfolding the Corporate Insolvency Resolution Process as contemplated under the IBC, NPA classification is not a condition precedent and proceedings pending before the Hon'ble High Court of Delhi will not be a bar for this Tribunal in considering the instant petition. Further it is also not seriously disputed by the Respondent when learned counsel for the Petitioner/Financial Creditor apprised this Tribunal about the status quo order by stating that it was issued to protect the possession of the assignee 'financial creditor' and therefore it would not be affected by triggering insolvency process which has been invoked by the Petitioner itself. 14. It is also pertinent to note that the Insolvency Resolution Process as contemplated under the IBC is for the benefit of all stakeholders including the Corporate Debtor as the very Scheme of the IBC contemplates not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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