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TMI Blog2018 (12) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh Mr. Harmeet Singh Phillip, Chief Manager, Oriental Bank of Commerce on the basis of Power of Attorney dated 04.09.2003 (Annexure A-80). 2. When the matter was listed on 01.05.2018, it was observed that the financial creditor was not given the date on which the default occurred. Time was granted to the petitioner to amend the petition for incorporating necessary details. 3. Accordingly the petitioner filed CA No.257 of 2018 along with the amended petition. It was also stated that the copy of the amended petition was sent to the corporate debtor in terms of Rule 4(3) of Rules. 4. It is stated that the respondent-corporate debtor was incorporated on 25.06.2008 and its present authorised and paid-up share capital is Rs. 15,00,00,000/- divided into Rs. 1.50 crores equity shares of Rs. 10 each. The registered office of the respondent-corporate debtor is at Gurugram, in the State of Haryana and therefore, the matter falls within the territorial jurisdiction of this Tribunal. The certificate of incorporation of the corporate debtor is at Annexure A/2 with which the Memorandum and Articles of Association have been annexed. 5. When the matter was listed on 13.07.2018, the learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction letter dated 25.02.2010 Annexure A-10 was duly endorsed by the respondent-corporate debtor for accepting the terms and conditions of loan vide its Board of Directors resolution dated 25.03.2010 Annexure A-11. Thereafter on the request of respondent-corporate debtor and pending creation of lenders consortium between the financial creditor with the other banks, the financial assistance of Rs. 350/- crores allowed by petitioner-bank was reduced to Rs. 280/- crores details of which have also been given. The sanction for the consortium loan is dated 03.05.2010 (Annexure A/12) which was accepted by the corporate debtor vide documents as at Annexure A/18. The authority to execute the documents to avail loan facility was granted by Resolution dated 04.05.2010 of the respondent-corporate debtor which is at Annexure A/13. 9. It is further stated that the respondent-corporate debtor executed the following security documents on 06.05.2010:- (i) Agreement of Term Loan for INR Rs. 40.00 crores (Annexure A/14) (ii) Agreement of Hypothecation of Assets for INR Rs. 80.00 crores (Annexure A/15) (iii) Counter Guarantee Agreement for INR Rs. 200.00 crores (Annexure A/16). (iv) Common Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was executed inter se the financial creditors. The corporate debtor accepted the Inter Creditor Agreement vide its Memorandum of Confirmation dated 30.09.2015 (Annexure A/63) and executing a Letter of Authority dated 30.09.2015 (Annexure A/64). 15. The following documents were executed by the corporate debtor viz; joint demand promissory note dated 30.09.2015 (Annexure A/65); Third Supplementary to the Amended and Restated Working Capital Facility Agreement (Annexure A/66); Second Addendum to Amended and Restated Deed of Hypothecation (Annexure A/67); Second Addendum to Amended and Restated Counter Indemnity/Guarantee for the Bank Guarantee Limits (Annexure A/68) all of the even date. The promoters as the corporate guarantors and indemnifiers of the corporate guarantors executed their respective corporate guarantees and addendum to counter Indemnifiers of the then sanctioned loan facility which are at Annexure A/69 to A/74. The reference is also made to the creation of the execution of hypothecation documents, the photocopy of last registered charge from the website of Ministry of Corporate Affairs is at Annexure A/75. 16. The financial creditor further stated that last payment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct documents. The Chairman of the Extraordinary General Meeting also brought to the notice of the shareholders the initiation of the proceedings under the Code at the instance of the petitioner-financial creditor. It was also considered in the meeting that the Company is facing dire financial distress and it would be in the best interest of the Company to submit to insolvency process pursuant to the provisions of the Code, The intimation to the Registrar of Companies with regard to the appointment of the aforesaid new directors was also sent by letter dated 03.10.2018, copy of which at Annexure R-4. 19. In the reply filed by the respondent-corporate debtor contents of which are supported by the affidavit of Ms. Kiran Sharma, the allegations of facts made by the petitioner-financial creditor have not been disputed on merits. It is also admitted that the corporate debtor has committed default in the payment of its financial debt to the financial creditor. The conduct of the operations of the corporate debtor have been bona fide all the times the corporate debtor has landed in a position of financial distress owing to inability to honour the repayment demands of the banks post the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Clause (a) of Section 7(3) of the Code have been fulfilled. 23. It is mandatory for the financial creditor to name the Resolution Professional proposed to be appointed as Interim Resolution Professional as required by Clause (b) of Section 7(3) of the Code. The petitioner has proposed the name of Mr. Vikram Kumar, registered Resolution Professional, who has furnished the written communication in Form-II as at Annexure A/81. We have perused the written communication and have found the same to be in order. It is certified that there are no disciplinary proceedings pending against the proposed Interim Resolution Professional with the Insolvency and Bankruptcy Board of India or Indian Institute of Insolvency Professionals of ICAI. Presently, he is serving as an Interim Resolution Professional/Resolution Professional in two proceedings. 24. In view of the above the petition is admitted. While admitting the application the moratorium is declared for prohibiting all the following as provided in section 14(1) of the code: "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking control and custody of the assets over which the 'Corporate Debtor' has ownership rights recorded in the balance sheet of the 'Corporate Debtor' etc. as provided in Section 18 (1) (f) of the 'Code'. The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the 'Corporate Debtor'; (iii) The Interim Resolution Professional shall strictly act in accordance with the 'Code', all the rules framed thereunder by the Board or the Central Government and in accordance with the 'Code of Conduct' governing his profession and as an Insolvency Professional with high standards of ethics and moral; (iv) The Interim Resolution Professional shall cause a public announcement within three days as contemplated under Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 of the initiation of the Corporate Insolvency Resolution Process in terms of Section 13 (1) (b) of the 'Code', read with Section 15 calling for the submission of claims against 'Corporate Debtor'; and (v) It is hereby directed that the 'Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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