9911796707
TMI Blog2019 (5) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... rporated on 28.12.2010 having its registered office at 509/5, Maa Anand Mai Marg, Govindpuri, New Delhi-110019. 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 Dena Bank is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Registered Office at Dena Corporate Centre, C-10, G Block, Bandra Kurla Complex, Bandra East, Mumbai, Maharashtra -400051. 4. Shri S. M. Wasnik authorized representative and working as Branch Manager, office at Dena Bank, Aggarwal Bhawan, Nehru Place, New Delhi, has preferred the present application on behalf of the applicant for initiation of corporate insolvency resolution process against the respondent corporate debtor in terms of the provisions of the Code. 5. The applicant has proposed the name of Mr. Alok Kumar Agarwal, for appointment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant has filed copies of the relevant sanction letters, loan agreements, demand promissory note and Certificate of Registration of Charge created to secure the loan facilities extended to the respondent company from time to time. The applicant has further enclosed copy of updated statement of accounts of the facilities w.e.f. 27.02.2015 along with the Banker's Certificate in terms of Banker's Books of Evidence Act, 1891. 10. It is alleged that the respondent corporate debtor had availed various credit facilities but failed to pay- its dues to the Applicant Bank. Consequently, the Applicant Bank declared the Account of the Corporate Debtor as a Non-Performing Asset ("NPA") on 31.10.2017 as per the extant guidelines of Reserve Bank of India. 11. It is contended that despite reminders and written demands, respondent corporate debtor did not pay the dues outstanding in the loan account. Thereafter, a Recall Letter/Demand Notice under Section 13 (2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("SARFAESI") dated 22.02.2018 was issued by the Applicant Bank to the Corporate Debtor demanding a sum of Rs. 19,42,37,169.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in terms of circular and guidelines of RBI and determined the account as NPA illegally; cannot be a ground to reject the application preferred by financial creditors under Section 7 of the Code, there being default in payment of financial debt. 22. It is also alleged that the respondent approached the officials of the financial creditor for review of the highest part of interest and processing fees charged in the loan account and unreasonable penal interest imposed. Nevertheless, the financial creditor intentionally and deliberately did not provide any benefit to the corporate debtor. It is further alleged that the entries on the debit and credit side of the statement are false and fabricated inasmuch as the applicant has not acted reasonably in applying the Clayton's rule while computing the liability of the respondent. It is further alleged that there has been discrepancy in the amount of claim Lodged from time to time. 23. Be that as it may, dispute over the quantum of default, cannot also be a ground for rejection of an application under Section 7 of Code, as the determination of quantum of financial debt is not within the domain of the Adjudicating Authority. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Corporate Insolvency Resolution Process by the "Financial Creditor" is delineated under Section 7 of the Code, wherein only "Financial Creditor" / "Financial Creditors" can file an application. As per Section 7(1) of the Code an application could be maintained by a Financial Creditor either by itself or jointly with other Financial Creditors. 29. The expressions "Financial Creditor" and "Financial debt" have been defined in Section 5 (7) and 5 (8) of the Code and precisely "Financial debt" is a debt along with interest, if any, which is disbursed against the consideration for time value of money. 30. In the present case the applicant bank had sanctioned and disbursed the loan amount recoverable with applicable interest by entering into loan agreements with the corporate debtor. The corporate debtor had borrowed the credit facility against payment of interest as agreed between the parties. The loan was disbursed against the consideration for time value of money with a clear commercial effect of borrowing. Moreover, the debt claimed in the present application includes both the component of outstanding principal and interest. In that view of the matter not only the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebt amount vide its letter dated 01.02.2018. In addition, applicant bank has filed the statement of accounts duly certified in accordance with Bankers' Books Evidence Act, 1891 as per requirement of Form-1 part V column 7 of the application. Certified copy of statement of account pertaining to various loan facilities, kept during the course of banking business basing on which the claim has been raised can be termed as sufficient evidence of the financial debt. 36. It is thus seen that the applicant 'financial creditor' has placed on record voluminous and overwhelming evidence in support of the financial debt as well as to prove the default. 37. It is pertinent to mention here that the Code requires the adjudicating authority to only ascertain and record satisfaction in a summary adjudication as to the occurrence of default before admitting the application. The material on record clearly goes to show that respondent had availed the loan facilities and has committed default in repayment of the outstanding loan amount. 38. In the facts it is seen that the applicant bank clearly comes within the definition of Financial Creditor. The material placed on record further conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply of the essential goods or services to the Corporate Debtor as maybe specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018 which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14 (3) (b) of the Code. 44. The Interim Resolution Professional shall perform all his functions contemplated, inter alia, by Sections 15, 17, 18, 19, 20 & 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as maybe required by him in managing the day-to-day affairs of the 'Corporate Debtor'. In case there is any violation committed by the ex-management ..... X X X X Extracts X X X X X X X X Extracts X X X X
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