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TMI Blog2018 (11) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... incorporated on 03.05.1995 having its registered office at 249 & 250, Hari Nagar, Ashram, New Delhi - 110014. Since the registered office of the respondent corporate debtor is in New-Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. It is appropriate to mention that the applicant State Bank of India is a body corporate constituted under the State Bank of India Act, 1955 having its Corporate office at A/9, Vidhan Bhavan Marg, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai - 4000211 and one of its branch office amongst others at 6th Floor, Mohan Singh Place, Baba Kharak Singh Marg, Connaught Place, New Delhi - 110001. 4. Mr. Narinder Kumar Sharma, authorized representative of the applicant bank and working as Asst. General Manager has preferred the present application on behalf of the applicant State Bank of India for initiation of corporate insolvency resolution process against the respondent corporate debtor in terms of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c No. 63048343036 Balance Outstanding: Rs. 68,74,88,992.49 6.E-SBHTL-IIA/c No. 62118183229 Balance Outstanding: Rs. 69,64,44,085.50 7.E-SBH CC A/c No.62049660663 Balance Outstanding: Rs. 44,24,07,157.06 8.E-SBH T.L.-1 A/c No. 62033004585 Balance Outstanding: Rs. 16,25,37,099.62 Total (outstanding) - Rs. 287,30,27,863.47 8. The case of applicant as stated in application is that the Petitioner along with other consortium banks had granted/sanctioned five types of loans/limits/credit facilities to the respondent corporate debtor as follows: I. Working Capital (Fund Based and Non-Fund Based Limits) to the extent of Rs. 244.25 Crores II. Multiple Banking Arrangement to the extent of Term Loan of Rs. 60 Crores. Loan of Rs. 45 Crores III. Multiple Banking Arrangement to the extent of Term Loan of Rs. 45 Crores. IV. Multiple Banking Arrangement to the extent of Term Loan of Rs. 190.52 Crores. V. Consortium Term Loan to the extent of Rs. 275 Crores. 9. All the loans were either under the Multiple Banking Arrangements or under Consortiums formed by the Petitioner along with other 7 Financial Institutions. The Respondent Corporate Debtor is the borrower of respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i along with building constructed on 6th Floor, of the IT Building, Gaynt Tech Part, Chennai, together with covered Car Parks and Terrace Area. The possession notices were also published required under the Securitization Act, 2002 in well circulated newspapers namely Business Standard and Dinakaran in Chennai on 29.11.2012. 14. It is submitted that 4 (four) more possession notices were also issued on 03.12.2012 in respect of properties mortgaged in Mumbai being: (a) Commercial Wing of Building at 503A, on the 5th Floor, Entire 6th Floor, terrace area and entire 7th Floor along with twelve (12) car parking in the basement situated at village Danda, Landmark Condiminium, 149, CTS No. C542, Pali Road, Bandra West, Mumbai-400 053. (b) Land and building situated on 8th Floor, Unit Nos. 1 to 7, with six designated Car Parking at Podium level at Plot Nos. CI8 to 21 and corresponding City Survey Nos. 639-642 at Village Oshiwada, Lotus Neelkamal Business Park, Dalai Industrial Estate, New Link road, Andheri West, Mumbai-400 053. (c) Unit Nos. 201 and 202, 2nd Floor, Corinthian, Plot No. 370, CTS No. 286 B at Village Dhanda, off Carter Road, Bandra, Mumbai-400 050. 15. Indian Oversea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code nor can take away the right of any creditor to file application under Section 7 of the Code. Accordingly applicant bank individually has a clear right to file application under the Code in order to recover its dues. Besides in view of the overriding effect given to the provisions of Section 238 of the Code, anything inconsistent therewith contained in any instrument cannot take away the right of the applicant as financial creditor to file application under Section 7 of the Code. 20. Hon'ble NCLAT in the matter of Asian Natural Resources (India) Ltd. v. IDBI Bank Limited. in its order dated 11.08.2017 passed in Company Appeal (AT) (Insolvency) No. 60 of 2017 has observed that: "The Inter-se Agreement between different banks is not binding in nature, the 'Corporate Debtors' not being signatories cannot derive advantage of such Inter-se Agreement. This apart, the 'financial creditors' having right to file application under Section 7 of the I&B Code, individually or jointly on behalf of other 'financial creditors' as quoted below, the Inter-se Agreement between the 'financial creditors' cannot override the said provision, nor can take away ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P has agreed to accept the appointment as the interim resolution professional and has signed the communication dated 31.08.2018 in FORM 2 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. There is a declaration made by him that no disciplinary proceedings are pending against him in Insolvency and Bankruptcy Board of India or elsewhere. He has confirmed that he is not related to any party of the corporate debtor. In addition, other necessary disclosures have been made by Mr. Arvind Garg as per the requirement of the IBBI Regulations. Accordingly, he satisfies the requirement of Section 7(3)(b) of the Code. The defect as pointed out in this regard, therefore, stands rectified. 26. Respondent has further alleged that as the company was in dire need of money, the applicant bank being in a dominant position got certain sets of unfilled papers, undated printed proformas, blank stamp papers and forms etc.; signed from the signatory of the respondent company. In this regard applicant bank has submitted in its rejoinder that the corporate debtor had duly executed security documents and only as an afterthought now making wild and bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection regarding pendency of proceedings, it is well settled that the pendency of DRT proceedings and initiation of action under SARFAESI Act cannot be an impediment or bar to initiate the Corporate Insolvency Resolution Process under Section 7 of the Code. 32. Respondent corporate debtor further asserted that time and again it had requested the consortium of banks for more financial facility/restructure/compromise, but due to arbitrary, illegal and non-helping approach of the consortium, despite assurances, the same was not done. In reply applicant has stated in the rejoinder that having failed to comply with the terms and conditions of the sanction and having defaulted in its account, the respondent has no basis to demand a tailor-made custom restructuring plan. 33. In this regard it is pertinent to note that in financial transactions, adjustments and compromise are to be left to the parties to settle the matter in their best interest or exigencies of the business. However, in the absence of any binding compromise agreement/debt restructuring approval, it is beyond the powers of the Adjudicating Authority to defer the prayer of applicant financial creditor for admission of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding against the proposed IRP is pending 40. Hon'ble Supreme Court in the case of Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd. Private limited reported in AIR 2017 SC 4532 at Para 19 has observed that: "Once the adjudicating authority/Tribunal is satisfied as to the existence of the default and has ensured that the application is complete and no disciplinary proceedings are pending against the proposed resolution professional, it shall admit the application. The adjudicating authority/Tribunal is not required to look into any other criteria for admission of the application." (Emphasis given) 41. An application under Section 7 of the Code is acceptable so long as the debt is proved to be due and there has been occurrence of existence of default. What is material is that the default is at least 1 lakh. In view of Section 4 of the Code, the moment default is of Rupees one lakh or more, the application to trigger Corporate Insolvency Resolution Process under the Code is maintainable. 42. It is seen that the applicant has placed various documents in relation to the disbursement of the loan to the respondent company. The materials on record and the loan documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Arvind Garg having registration number IBBI/IPA-003/IP-N00029/2017-18/10189, resident of 302 - A, Pal Mohan Plaza, Desh Bandhu Gupta Road, Karol Bagh, New Delhi -110005 with e-mail-id [email protected] is appointed as an Interim Resolution Professional. 49. In pursuance of Section 13(2) of the Code, we direct that public announcement shall be made by the Interim Resolution Professional immediately (3 days as prescribed by the IBBI Regulations) with regard to admission of this application under Section 7 of the Insolvency & Bankruptcy Code, 2016. 50. We also declare moratorium in terms of Section 14 of the Code. The necessary consequences of imposing the moratorium flows from the provisions of Section 14(1)(a), (b), (c) & (d) of the Code. Thus, the following prohibitions are imposed: "(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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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