TMI Blog2019 (1) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant General Manager For The Respondent : Adv. Shilpan S. Gaonkar ORDER Per: V. Nallasenapathy, Member (T) 1.Oriental Bank of Commerce (hereinafter called Petitioner ) has sought the Corporate Insolvency Resolution Process of Hotel Reeva Private Limited (hereinafter called the Corporate Debtor ) on the ground, that the Corporate Debtor committed default on 01.10.2014 in repayment of facilities granted to the Corporate Debtor to the extent of 32,95,42,170/-, under Section 7 of Insolvency and Bankruptcy Code, 2016 (hereafter called the Code ) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The Petitioner enclosed sanction letter dated 03.06.2013 which shows that following facilities were sanctioned to the Corporate Debtor; Sr. No. Nature of Facility Amount 1 Term Loan I 63,00,000.00 2 Term Loan II 18,00,00,000.00 3 Term Loan III 4,00,00,000.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est, if any, which is disbursed against the consideration for the time value of money and includes money borrowed against payment of interest. Here in this case the sanction letter, loan agreement, other documents clearly show that the loan has been sanctioned which carries interest and hence it is clearly a financial debt. c. It is submitted that petition was filed without issuance of any demand notice for the defaulted loan and hence the principle of natural justice being audi alteram partem has been violated. Section 7 of the Code, unlike Section 9, does not provide for issue of any demand notice before filing a petition by a Financial Creditor. Further the Corporate Debtor has raised all his defence before this Bench in this proceedings, and has already filed his reply and written submissions which were considered on merits and hence there is no question of violation of natural justice. d. It is submitted that the Petitioner has not disclosed a letter dated 14.03.2015 addressed to the Corporate Debtor wherein it was stated that the default occurred in July 2014 but in the petition the date of default was shown as 1.10.2014. The nondisclosure of the letter or even the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursement of loan had happened in the year October 2014, we are now in October 2018, the Corporate Debtor kept quiet for the last four years and when a Petition under Section 7 is filed, it cannot take this defence at this belated juncture. h. The next contention of the Corporate Debtor is that the Petitioner claimed a sum of ₹ 32,95,42,170/- in the petition whereas the amount mentioned in the SARFAESI notice dated 07.01.2015 is ₹ 26,96,96,404/- hence there is no uniformity in the amount claimed and the amount stated to be in default. This difference is due to the interest for the subsequent period and hence this contention will not hold good. i. The Corporate Debtor submitted that there is some discrepancy in the interest calculation. This kind of grievance of the Corporate Debtor can be made to the Insolvency resolution professional at the time of the admission of the claim of the Petitioner and this cannot come in the way of admission of this petition. j. The Corporate Debtor submits that the claim is barred by limitation. However, a mortgage was registered on 29.02.2012 in favour of the Petitioner by the Corporate Debtor and hence, the claim is not barred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the Code. Neither the proceedings pending before the Debt Recovery Tribunal nor the SARFAESI proceedings would be a bar to initiate CIRP under the Code and hence the contention of the Corporate Debtor that pendency of SARFAESI proceeding will be a bar to initiate proceedings under Section 7 of the Code fails. Further, the aforesaid submissions cannot be accepted in view of the decision of Hon ble NCLAT in M/s. Unigreen Global Private Limited v. Punjab National Bank Anr.─ Company Appeal (AT) (Insolvency) No. 81 of 2017 , wherein it was held that pendency of SARFAESI proceedings or the DRT proceedings or DRAT proceedings, or suit proceedings cannot be a ground to reject the Insolvency and Bankruptcy petition. Further, it was held that I B Code shall have the effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force including DRT Act, 1993; SARFAESI Act, 2002; money suit etc. Hence this contention also fails. 6. This Adjudicating Authority, on perusal of the documents filed by the Creditor, is of the view that the Corporate Debtor defaulted in repaying the loan availed and has also placed the name of the Insolve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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