TMI Blog2019 (10) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... ng debt, as on 31st March, 2018 on which date the account of the Corporate Debtor was declared as an NPA. The application is complete in all respects, and the Financial Creditor has proved the existence of financial debt owed by the Corporate Debtor to the Financial Creditor, the default having been occurred in payment of the financial debt, we have no other option but to admit the application - Application admitted - moratorium declared. - C.P. (IB) No. 731/KB/2018 - - - Dated:- 9-8-2019 - SHRI JINAN K.R., MEMBER (JUDICIAL) AND SHRI HARISH CHANDER SURI, MEMBER (TECHNICAL) For The EARC : Mr Rahul Auddy, Advocate For The Corporate Debtor : Mr K. Thaker, Advocate And Mr. A. Bajaria, Advocate ORDER Per Harish Chander Suri, Member.( T) 1. This application filed under Section 7 of the Insolvency and Bankruptcy Code (in short, l B Code) 2016 read with Rule 4 of the l B (Application to Adjudicating Authority) Rules, 2016, has been filed by M/s. Edelweiss Asset Reconstruction Co. Ltd., a Corporate entity having its Registered Office at Mumbai, hereinafter referred to as the Financial Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an facilities were further secured by the personal guarantees of the Directors and the guarantees of Superb Drugs Private Limited. After execution of the documents, Bank of Baroda allowed the Corporate Debtor to avail the restructured facilities within the overall limit of ₹ 12,65,54,000/-. It is submitted that the Corporate Debtor failed and neglected to repay the facilities, due to which the account of the Corporate Debtor was classified as NPA by the Bank of Baroda on 31st March, 2010 4. It is further submitted that a notice dated 1st October, 2010 was issued by the Authorized Officer of the Bank of Baroda under Sub-Section (2) of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, thereby calling upon the Corporate Debtor and the Directors/Guarantors to pay a sum of ₹ 15,80,50,017.21 (Rupees Fifteen Crore Eighty Lakh Fifty Thousand Seventeen and Paise Twenty One Only) to the Bank of Baroda with interest up to 31st May, 2011 and an additional sum of ₹ 11,40,500/- (Rupees Eleven Lakh Forty Thousand Five Hundred Only) on account of contingent liability. The Bank of Baroda ultimatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the Corporate Debtor had strictly complied with the terms and conditions stipulated in the sanction letter dated 13th August, 2018 and the Corporate Debtor never had 4 Directors. There were only 3 Directors of the Corporate Debtor. The Corporate Debtor has denied and disputed the sum of ₹ 25,63,11,000/- or any part thereof to be payable by the Corporate Debtor to the Bank of Baroda on 26th February, 2014 or that the applicant Financial Creditor is entitled to charge ₹ 70,73,21,232/-as interest It is further denied that ₹ 49,34,86,910/- or any part thereof is outstanding as on 31st March, 2018. 7. The Corporate Debtor has further submitted that it is a viable commercial undertaking which employs around 70 people and is engaged in manufacturing of life saving drugs and submits that in case the application is admitted against the Corporate Debtor it will suffer irreparable loss and injury and thus the application is liable to be dismissed with costs in favour of the Corporate Debtor. 8. Similarly, the Financial Creditor in its rejoinder to the reply, filed by its Authorised Representative Mr. Naman Awasthi has submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to initiate any proceedings against the Corporate Debtor, or that the application should be dismissed. 11. During the course of arguments, the Corporate Debtor submitted that the application is barred by time because the Corporate Debtor s account was classified as Non-Performing Assets by the Bank of Baroda on 31st March, 2010 and the present proceedings have been filed on or around 26th April, 2017. The Financial Creditor has denied that the proceedings are barred by laws of limitation. It is submitted by the Financial Creditor that the Balance Sheet of the Corporate Debtor on 31st March, 2017 itself clearly disclosed and admitted a demand of ₹ 25 crores approximately to the Bank of Baroda. Even though the Corporate Debtor might not have admitted the amount due but certainly the amount in excess of ₹ 1,00,000/- is admitted in the Balance Sheet dated 31st March, 2017, which is due and outstanding. It is only because of the default of the Corporate Debtor to pay off its dues, that the credit facilities had to be restructured. 12. We are guided by the law laid down by Hon ble Supreme Court of India in the case of B.K. Educational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Asset Reconstruction Co. Limited by way of Assignment Agreement dated 26th March, 2014. Along with the assignment, the present Applicant entered into the shoes of Bank of Baroda, the assignor and all the documents of security, securing the loan/credit facilities availed by the Corporate Debtor were handed over to the Financial Creditor which according to our view are sufficient to proceed against the Corporate Debtor and admit the present application for initiation of Corporate Insolvency Resolution Process. The Financial Creditor has been able to prove the default having taken place in payment of the outstanding debt, as on 31st March, 2018 on which date the account of the Corporate Debtor was declared as an NPA. 16. The Financial Creditor has proposed the name of Mr. Anup Kumar Singh, a Resolution Professional vide Registration No. IBBI/IPA-001/IP-P00153/2017-2018/10322 to act as an IRP in case the application is admitted and the said IRP vide letter dated 6th April, 2018, has addressed a communication to this Tribunal, enclosed with the petition, that he is eligible to be appointed as an IRP in the case of M/s. Gena Pharmaceuticals Limited and he is eligible to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. v) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during the moratorium period. vi) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vii) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii) Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate d ..... 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