TMI Blog2020 (4) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor. Hence, the present IB Petition is admitted with the following Directions/observations. The date of admission of this petition is 13-1-2020. Thus the present IB petition filed under section 7 of the IBC stands admitted on 13-1-2020 - Moratorium declared. - C.P. (IB) NO. 279/7/NCLT/AHM/2018 - - - Dated:- 13-1-2020 - Harihar Prakash Chaturvedi, Judicial Member And Prasanta Kumar Mohanty, Technical Member Navin Pahwa, Sr. aDV., Sunil Bhavsar, Adv. for the Applicant. Ms. Natasha Dhruman Shah, Adv. for the Respondent. ORDER Prasanta Kumar Mohanty, The present IB. Petition is filed by the Financial Creditor Andhra Bank under section 7 of the Insolvency Bankruptcy Code, 2016 (hereinafter referred to as a Code ), seeking initiation of Corporate Insolvency Resolution Process ( CIRP in Short) against the Corporate Debtor namely, Krishna Knitwear Technology Limited for the default committed by the Corporate Debtor in making repayment of the OCC/FITL facility availed from the Bank. The Applicant (FC), Andhra Bank is a Bank, incorporated under the provisions of the Banking Companies (Acquisition Transfer of Undertakings) Act, 1980. The appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement in the operation of the Respondent company and service of debt. Accordingly, the account of the Respondent company became irregular and was declared as NPA on 29-6-2012. 7. Subsequently, the Applicant recalled the loan and invoked the guarantees and issued Demand Notice under section 13(2) of the SARFAESI Act on 31-1-2015. However, the Respondent company failed to pay the dues of the Applicant along with other consortium lenders and hence, the Applicant and other consortium lenders filed a Recovery Application before the DRT, Ahmedabad vide Original Application No. 150 of 2016 on March' 2016, which is pending for adjudication. 8. Various loans/credit facilities granted by the applicant Bank are narrated as under: (a) OCC Limit for ₹ 104.00 Crores. (b) OCC Adhoc for ₹ 5.00 Crores. (c) FITL for ₹ 14.30 Crores. Thus, total aggregate limit of ₹ 123.30 Crores (OCC/FITL) were sanctioned by the Applicant Bank vide sanction letter dated 29-12-2012 30-6-2014 with terms and conditions including hypothecation of plant and machineries, mortgage of immovable properties, personal guarantee of (i) Shri Pravin Kumar Tayal, (ii)Shri Navin Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total OCC 1638762764.54 330910723.71 200427176.04 2170100664.29 Adhoc OCC 83575430.00 0 0 83575430.00 FITL 199488427.55 0 0 199488427.55 Total 1921826622.09 330910723.71 200427176.04 2453164521.84 12. The Petitioner Bank, in support of its contentions has annexed the details of Financial Debt, Records and evidences of default including copies of all the sanction letters, the workings showing the amount claimed to be in default and its calculation in tabular form as on 14-5-2018 along with CIBIL report and Valuation reports. 13. The present application has been filed by the Financial Creditor under section 7 of the Insolvency Bankruptcy Code, 2016 read with rule 4 of the Insolvency Bankruptcy before this Adjudicating Authority to initiate the Corporate Insolvency Resolution Process. 14. The Financial Creditor, to subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mortgage dated 29-3-2011 by KSL and Industries Ltd., (Pages No. 890 to 891 of paper book); xxii. Copy of Memorandum of Entry dated 10-9-2014 between the Respondent company and M/s.IL FS Trust Company Limited(Pages No. 892 to 903 of paper book); xxiii. Copy of second Amendatory Agreement dated:13-3-2014(Pages No. 904 to 920 of paper book); xxiv. Copy of certificate under Banker's Book Evidence Act, 1891 and IT Certificate (Pages No. 943 of paper book); xxv. Copy of the Audited Balance Sheet for the year 2016-2017 (Pages No. 944 961 of paper book); xxvi. Copies of Valuation Reports as Exhibit E-l, 2, 3, 4, 5, 6, 7 8 of the properties owned by the Corporate Debtor, Guarantors and Corporate Guarantors (Pages No. 55 to 313 of paper book) xxvii. Copy of CIBIL Report dated 15-5-2018 (Pages No. 935 to 942 of paper book) 15. In the present matter, this Tribunal, vide its order dated 09-7-2018 had directed the Petitioner Bank to serve the notice of date of hearing to the Corporate Debtor and file the proof of service of notice before this Tribunal. Thereafter, the Respondent, Corporate Debtor appeared before this Tribunal on 31-8-2018 and sought time to fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .5 It is pleaded that no reliance can be made upon certain documents produced by the Applicant along with the present application in the absence of any Board resolution executed by the directors of the Respondent company. It is submitted that Applicant has reportedly allowed adhoc OCC of ₹ 5.00 crores and FITL of ₹ 14.30 crores with present outstanding of ₹ 8.36 crores and ₹ 19.95 crores respectively, however upon perusal of the notice issued under section 13(2) of the SARFAESI Act, it can be gathered that no outstanding balance against adhoc OCC and FITL has been claimed. Hence, the documents relied upon by the Applicant itself clearing establishes that there was no outstanding liability under adhoc OCC and FITL. 16.6 It is submitted that the Applicant has relied on certain calculation sheets developed manually containing ROI ranging from 14.30% p.a. to 16.50% p.a. and the Applicant has not relied upon any such sanction which permits the Applicant to charge the said ROI and is accordingly put to strict proof thereof. It is submitted that the Applicant has charged penal interest and also compounded the same, which is against the guidelines of RBI and judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the first time on 9-7-2018. This Adjudicating Authority directed the Respondent to file its objections, if any within two weeks with a copy to the other side. Objections were filed by Respondent on 29-10-2018. Petitioner filed statement of accounts on 6-9-2019. Thereafter, the matter was adjourned on 30-4-2019, 22-7-2019, 21-8-2019, 3-9-2019 18-9-2019. On 04-10-2019, the matter was finally heard and both the Counsels were granted liberty to submit their written submissions within one week. The counsels of the Petitioner and the Respondent were present and put forth their submissions before the Bench. 18. On 22-7-2019, the Applicant Financial Creditor filed rebuttal documents, in compliance of the orders dated 27-11-2018 of this Adjudicating Authority in support of their claims. 19. Further, the following are the pending matters in relation to this Corporate Debtor - i. IA 237 of 2019 in CP(IB) 279 of 2018 filed by the Krishna Knitwear Technology Ltd. v. Andhra Bank The instant Interlocutory Application is filed by the Applicant (Respondent herein) under section 65(1) read with section 60(5) read with section 424 of Companies Act, 2013 read with rule 11 of NCLT Rules, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant (Respondent herein) under section 60(5) of IBC, 2016 against the Respondent (Applicant Bank herein) seeking directions to dispose of the petition filed by the Applicant Bank herein with the following reliefs - (a) That the Application u/s. 7 of the IBC, 2016 of the Respondent be rejected with exemplary cost upon the Respondent (b) that any other relief maybe granted as deemed fit and proper. (c) To defer the hearing of CP(IB) No. 279/7/NCLT/AHM/2018 until final adjudication of the present application. (d) Issue notice to the Respondent Bank under section 65 of Insolvency Bankruptcy Code, 2016. (e) May be pleased to impose a penalty of Rs.l Crore upon the Respondent Bank on account of initiating and pursuing a malicious proceeding against the Corporate Debtor under Insolvency Bankruptcy Code. 20. It is also observed that the Office of the Deputy Commissioner of Income Tax, Central Circle-5(3), Mumbai has submitted a letter dtd: 16-9-2019, claiming an outstanding demand of ₹ 376.57 Crores against the Corporate Debtor for the assessment year from 2008-09 to 2016-17. 21. The Petitioner Bank has suggested the name of Insolvency Professional to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sl. No. Particulars As on 31-3-2017 (Rs. In Lacs) 1 Secured (a) Term Loan From Banks 7025.27 (b) FITL (Working Capital) From Banks 7525.22 Short Term Borrowings Secured Working Capital Loan From Banks 62173.33 Total Dues to Banks 76723.82 28. The present I.B. Petition is filed by the duly authorised official of the Applicant Bank in a prescribed format under section 7 of the I B. Code annexing copies of loan documents confirming the existence of debt due and default and proposed a name of Resolution Professional to act as an Interim Resolution Professional (IRP). 29. IA 237 of 2019 is filed by the Applicant (Respondent herein) under section 65(1) read with section 60(5) read wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal arbitration panel or other authority. (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein. (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the 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. II. The supply of essential goods or services to the corporate debtor as maybe specified shall not be terminated or suspended or interrupted during the moratorium period. III. The provisions of sub-section (1) shall not apply to (a) such transactions as maybe notified by the Central Government in consultation with any financial sector regulator. IV. The order of moratorium shall have effect from the date of this order till the completion of the Corporate Insolv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Base Rate + 4.75% plus 2 % interest with monthly rest till realisation, more particularly set out in Exhibit D at pages no. 29 to 54 of the paper book. One of the prime objective of the Insolvency Bankruptcy Code, 2016 is to quickly find out a viable Insolvency Resolution Plan for the Corporate Debtor and in order to have a Resolution Plan Viable, feasible and implementation successful, in the era of Minimum Cost of funds-based Lending Rate ( MCLR in short) and Competitive market condition, the Resolution Applicant/Resolution Professional/Committee Of Creditor(s) (COC) may explore, while finalizing the Resolution Plan for the Corporate Debtor, the possibility of loading maximum interest at the Applicant Bank's Base Rate (BR) +1% from the date of default to the date of implementation of MCLR and further from the date of implementation of MCLR till the date of approval of the Resolution Plan at the rate of Petitioner Bank's One Year MCLR or One Year MCLR + 1% without any penal/overdue interest. 36. The Registry is hereby directed to communicate the authenticated copy of this order to the Financial Creditor, Corporate Debtor Company, the I.R.P. and also to the Registra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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