TMI Blog2019 (11) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial Creditor regarding existence of 'financial debt' and occurrence of 'default'. Further, the Financial Creditor has fulfilled all the requirements as contemplated under 1B Code in the present Company Petition and has also proposed the name of IRP after obtaining his written consent in Form-2. Petition admitted. - CP(IB) NO. 26/7/HDB/2018 - - - Dated:- 8-11-2019 - HON'BLE SHRI K ANANTHA PADMNABHA SWAMY- MEMBER JUDICIAL AND HON'BLE SHRI BINOD KUMAR SINHA -MEMBER TECHNICIAL For the Petitioner/Financial Creditor : Mr. V.K.Sajith, Mr. G.P.Yash Vardhan Mr. Appa Rao, Counsels. For the Respondent/Corporate Debtor : Dr. K. Lakshmi Narasimha, Mr. M. Anil Kumar Mr. B.V.Papa Rao, Counsels. For the Enforcement Directorate : Dr. K. Manmadha Rao, Counsel. ORDER Per: K. Anantha Padmanabha Swamy, Member Judicial. 1. Under consideration is a Company Petition, filed by IFCI Ltd (hereinafter referred to as 'Financial Creditor') under section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as IBC) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NDU Techzone Pvt. Ltd. The said authorization letter was signed by Executive Director i.e. V. Satyavenkata Rao on 27-09-2017. It is submitted that said authorization letter was not filed along with the Insolvency Petition. iii. That as per the said authorization letter, the delegation of power was given to the Managing Director and CEO, but the said authorization letter was signed by the Executive Director. Hence, the authorization letter filed before this Adjudicating Authority even on 05-02-2018 is not in accordance with the procedure prescribed under the Insolvency Code. It is further contended that the copy of the resolution passed by the Board of Director of IFCI at their meeting on 29-06-2017 delegating powers to Managing Director and CEO was not filed along with the Memo nor along with the Petition. Even in the said authorization letter, Sri Raghubabu.G was proposed to be the IRP, but the Petition filed by the Financial Creditor along with Form No.2 discloses the name of Sri S. V. Satyanarayana as proposed Insolvency Professional, which is contrary to the Form No.2 submitted along with the Petition. That the person who signed in Form No.2 has been not authorized by the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings against the Corporate Debtor before DRT. Therefore, the petition is liable to be dismissed. V. That the cause title of the Financial Creditors petition does not show who is representing the Financial Creditor and thus the petition is liable to be dismissed. 5. It is pertinent to note that ED was issued notice vide order dated 05.02.2019, by this Adjudicating Authority and the counsel for ED appeared on 11.03.2019 and has filed its counter and written submissions on 22.04.2019 inter-alia stating as under: I. That ED, Hyderabad Zonal Office, Hyderabad, registered a case on 30.08.2011 against Shri. Y.S.Jagan Mohan Reddy Others under the provisions of Prevention of Money Laundering Act, 2002, wherein M/S. Indu Techzone Private Limited (Corporate Debtor) was also one of the suspects. The instant case was based on the FIR registered by CBI, ACB, Hyderabad, vide FIR dated 17.08.2011. The allegation in the charge sheet filed by CBI, ACB, Hyderabad, is that M/S. Indu Techzone Private Limited was favoured illegally by the Govt. of Andhra Pradesh in the form of allotment of govt. projects in lieu of the quid-pro-quo investment made in the companies of Shri. Y.S.Jagan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... micably. Accordingly, this Adjudicating Authority enlarged time at request of both sides. But no settlement had taken place between the parties. 9. During the hearing held on 05.02.2018, the matter was reserved for orders by hearing submissions of both sides and further, the same was suo-motu re-opened for want of clarification on 25.04.2018. Again the matter adjourned several times at request of both sides in relation to amicable settlement. 10. During the hearing held on 03.08.2018, this Adjudicating Authority has pointed out some defects in the petition and directed Petitioner to rectify the same before seven days. Counsel for the Petitioners rectified the same and furnished copy of the petition on the other side. Both sides also filed their written submissions in the registry and the matter was reserved for orders on 14.09.2018, but due to change of adjudicating authority, matter was again re-opened for hearing on 01.10.2018. 11. During the hearing held on 03.12.2018, counsel for the Respondent brought to the notice while hearing submissions that the properties of the Corporate Debtor were attached by Enforcement Directorate (ED) under separate proceedings. The matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disbursed, which led to cancellation of balance loan of 50.11 Crores by the Financial Creditor. 20. Further, it is not denied by the Corporate Debtor that the aforesaid loan of Crores was not repaid . as per terms agreed upon between parties and contained in various undertakings signed on behalf of the Corporate Debtor. 21. It is also a matter of record that the impugned loan a/c was classified by the Financial Creditor as NPA on 30.06.2014 in terms of RBI guidelines and a recall notice was given to Corporate Debtor on 02.07.2014. Subsequent to this, the Financial Creditor took steps to initiate recovery proceedings first under the DRT on 14.11.2014 and later under SARFAESI Act. 22. Meanwhile, Enforcement Directorate provisionally attached 150 acres of land of the Corporate Debtor situated at Mamidipalli Village, Saroor Nagar Mandal, Ranga Reddy District, T.S. in Sy. No.99/1 on 06.02.2015, which is mortgaged as a collateral security with the Financial Creditor. The attachment was subsequently, confirmed by the Adjudicating Authority, PMLA, and an appeal has been preferred by the Financial Creditor against the same which is still pending for adjudication. 23. During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Authority, PMLA. They have also stated that as per provisions no consent is required from other members of JLF and any lender can file in NCLT individually. 27. Further, provisions of section 7 of IBC, 2016 clearly empower a Financial Creditor to file an application either by itself or jointly/'. In view of the overriding effect of the provisions of IBC, 2016 as provided in section 238 of the Code, no other provisions of any other law or instruments issued thereunder can be relied upon by the Corporate Debtor to support their case. 28. As regards (d) above, it is noted that this issue has been considered in several cases and it is now well settled position of Law that pendency of proceedings under SARFAESI does not constitute a bar against section 7 application filed under the IBC. Some of these decisions can be found in: i. Dena Bank Vs 0m Shiv Hydro Power Constructions (2018) complas OL367 (NCLT-Mum). ii. PNB vs Carnation Auto India (P) Ltd (2017) 144 SCL 234 (NCLT-New Delhi). 29. As regards (e) above, it is seen from record that the Corporate Debtor has itself confirmed the debt by way of the following documents: I. Balance confirmation certificate d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facilities etc., and copies of entries in Bankers Book in accordance with the Bankers Books Evidence Act, 1891 (18 of 1891) which proves that a default has occurred for which the present Corporate Debtor was liable to pay. Thus, this Adjudicating Authority is satisfied with the submissions put forth by the Petitioner/ Financial Creditor regarding existence of 'financial debt' and occurrence of 'default'. Further, the Financial Creditor has fulfilled all the requirements as contemplated under 1B Code in the present Company Petition and has also proposed the name of IRP after obtaining his written consent in Form-2. In view of the above, this Adjudicating Authority is inclined to admit the petition. 35. The instant petition is hereby admitted and this Adjudicating Authority Orders the commencement of the Corporate Insolvency Resolution Process which shall ordinarily get completed as per the time line stipulated in section 12 of the 1B Code, 2016, reckoning from the day this order is passed. 36. This Adjudicating Authority hereby appoint Mr. S. V. Satyanarayana as the IRP, as his name is proposed by the Financial Creditor and his name is reflected in IBBI web ..... X X X X Extracts X X X X X X X X Extracts X X X X
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