TMI Blog2018 (11) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... essional 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. - Company Petition No. (IB)-438(PB)/2018 - - - Dated:- 9-10-2018 - MR M.M.KUMAR, PRESIDENT AND MR S.K. MOHAPATRA, MEMBER (T) For The Applicant : Kaaran Khanna, Adv. For The Respondent : Joby P. Varghase, Adv. Aby P. Varghese and Shahid Akhtar, Advs ORDER S.K. Mohapatra, Member Indian Oversea Bank, claiming as the financial creditor, has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) with a prayer to trigger Corporate Insolvency Resolution Process in respect of respondent company M/s Pixion Media Private Limited, referred to as the corporate debtor. 2. The Respondent Company M/s Pixion Media Private Limited (CIN No. U 92112 DL 1986 PTC 025695) against whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 07.10.1986 having its registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctioned a term Loan to the extent of ₹ 60.00 crores, which was subsequently brought under the consortium of bank. 7. However, soon after the Joint documentation the Corporate Debtor started committing default in servicing of the interest and committed default in repayment of loan. Consequently the account of the Corporate Debtor was declared as a Non Performing Asset on 02.03.2012 in terms of RBI guidelines. 8. Particulars of Financial Debt as mentioned by the applicant bank in Part - IV of the application are enumerated below: 1. Total amount of debt granted date(s) of disbursement. Date of Sanction : 19.11.2010 Disbursement: ₹ 60,00,00,000/- (Sixty Crores only) 2. Amount claimed to be in default and the date on which the default occurred (attach the workings for computations of amount and days of default in tabular form) Amount claimed as on 31.03.2018: ₹ 177,00,28,591.80 NPA date: 02.03.2012 9. In order to secure the loan amount the following three immovable properties owned by the respondent corporate debtor were held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s books debts dated 29.11.2010. v) Copy of various Guarantees dated 29.11.2010. vi) Copy of confirmation of deposit of title deeds dated 2.12.2010, 4.12.2010, 17.12.2010, 25.12.2010 and 25.12.2010. vii) Copy of Demand Promissory Note for Rs. Sixty crores dated 29.11.2010. viii) Copy of Acknowledgement of debt dated 15.02.2011. ix) Copy of Letter of Authority to be given by Consortium Term lenders to Lead Bank dated 23.02.2011. x) Copy of Inter se Agreement dated 23.02.2011. xi) Copy of Facility Agreement dated 23.02.2011. xii) Copy of joint deed of Hypothecation dated 23.02.2011. xiii) Copy of standard terms as applicable to guarantee for consortium term loan dated 23.02.2011. xiv) Copy of various Deed of guarantees dated 23.02.2011. xv) Copy of General condition as applicable to consortium term loan dated 23.02.2011. xvi) Copy of short fall / unsecured loan undertaking dated 23.02.2011. xvii) Copy of Declaration regard mortgage of immovable property dated 23.02.2011. xviii) Copy of notice dated 13.08.2012 under section 13(2) of the Securitization Act, 2002. xix) Copy of notice dated 03.12.2012 under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile 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. 15. 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 the right of any Financial Institution to file application under Section 7 of the I B Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with his consent in Form 2. In the present case in view of the objection of the respondent, the applicant bank has filed an interim application for change of the proposed IRP and to substitute Mr. Anil Kumar as IRP in place of Mr. Hemant Sharma. Mr. Anil Kumar has agreed to accept the appointment as the interim resolution professional and has signed the communication dated 27.08.2018 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. Anil Kumar as per the requirement of the IBBI Regulations. Accordingly, the defect as pointed out in this regard, therefore, stands rectified. 21. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the resolution professional/ committee of creditors. Adjudicating Authority is only to ascertain the existence of a default and not the exact amount due. Mere mismatch of the figures will ipso facto not estop the admission of corporate insolvency resolution process under section 7 of the Code. 26. In connection with simultaneous 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. 27. 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 as soon as the recovery proceedings were initiated by the applicant, the respondent started giving proposals for amicable settlement. In addition several settlement applications were also filed before Debt Recovery Tribunal. 28. In this regard it is pertinent to note that in financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t bank can clearly be termed as Financial Creditor so as to prefer the present application under Section 7 of the Code. 34. Under sub-section 5(a) of Section 7 of the code, the application filed by the applicant financial creditor has to be admitted on satisfaction that: 1. Default has occurred. 2. Application is complete, and 3. No disciplinary proceeding against the proposed IRP is pending. 35. Hon ble Supreme Court in the case of Mobilox Innovations (P.) Ltd. v. Kirusa Software 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) 36. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the present application is complete and the applicant financial creditor is entitled to claim its outstanding financial debt from the corporate debtor and that there has been default in payment of the financial debt. 42. As a sequel to the above discussion and in terms of Section 7(5)(a) of the Code, the present application is admitted. 43. Mr. Anil Kumar having registration no. IBBI/IPA-001/IP-P00144 / 2017-18 / 10308, resident of 303, Chandra GHS Limited, Golf Course Road, Plot No. 64, Sector 55, Gurgaon, Haryana-122011, email id; anil2566@gmail.com, is appointed as an Interim Resolution Professional. 44. 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. 45. 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 suit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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