TMI Blog2018 (7) TMI 2133X X X X Extracts X X X X X X X X Extracts X X X X ..... e present petition is not maintainable and the re-structuring proposal is required to be first considered cannot be accepted - the application submitted by the operational creditor is complete in all respects and there is no defect pointed out by the corporate debtor. It is also proved that payment of the unpaid operational debt has not been made. Application admitted - moratorium declared. - CP (IB) No. 46/Chd/Pb/2018 - - - Dated:- 27-7-2018 - Hon ble Mr.Justice R.P.Nagrath, Member (Judicial) AND Hon ble Mr.Pradeep R.Sethi, Member (Technical) For the Petitioner : Mr.Harsh Garg, Advocate For the Respondent : Mr.Aalok Jagga, Advocate Judgment Per: Pradeep R.Sethi, Member (Technical) The instant petition is filed in Form 1 under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity, the Rules). The petition is filed by Oriental Bank of Commerce (hereinafter referred as the petitioner) for initiating the corporate insolvency resolution process in the case of M/s J.R.Agrotech Private Limited (hereinafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the lead bank of the consortium on behalf of all the members of the consortium to the corporate debtor as well as to the guarantors in the loan account of the corporate debtor demanding an amount of ₹283,62,49,468.73 as on 27.11.2017 along with future interest at the contractual rate along with incidental expenses and that the outstanding of the corporate debtor towards the petitioner was ₹21,16,32,118/- as on 31.10.2017. Bank account statement maintained as per the provisions of Bankers Books Evidence Act, 1891 are stated to be attached as Annexure I/6 (colly). 5. In Part III of form 1, Shri Dinesh Kumar Seth, Regn.No.IBBI/IPA-02/IPN00014/ 2016-2017/10018 has been proposed as Interim Resolution Professional. The Form 2 is at Annexure II of the petition. In accordance with the provisions of Rule 9 of the Rules, Shri Dinesh Kumar Seth has agreed to accept appointment as Interim Resolution Professional and has affirmed that he is eligible to be appointed as a Resolution Professional in respect of the corporate debtor in accordance with the provisions of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required to consider the re-structuring of the unit before it approaches the Tribunal. It is stated that the master circular is binding on all the banks and that in the consortium meeting dated 02.12.2017 (Annexure R 7 of the reply), it was mentioned that the corporate debtor had submitted a re-structuring proposal which was circulated amongst all the member banks including the petitioner and the said proposal was examined by the banks at a preliminary stage and on account of certain queries raised by the bank, it was decided and assured by the corporate debtor to re-submit the re-structuring plan by 09.12.2017 after modifying the same in view of the preliminary observations of the bank. It is further stated that the minutes of the meeting state that all the member banks had expressed their willingness for considering re-structuring of units only after submission of a viable proposal by the corporate debtor and the decision regarding filing of insolvency application before the Tribunal for recovery of dues was also discussed and the banks decided to defer the same till the approval from the respective competent authority is obtained. 9. It is further averred that the re-struct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time. The learned counsel for the petitioner referred to the minutes of the JLM meeting held on 16.09.2017 (Annexure R-4 of the reply) and stated that in respect of stock audit of the corporate debtor, the stock auditors refused to provide audit report citing non-cooperation from the company and therefore, a special investigative audit of the corporate debtor was directed. The learned counsel for the petitioner has stated that notice under Section 13(2) of SARFAESI Act was served on 27.11.2017 by SBI on behalf of all the banks under consortium (para No.4 of minutes of JLF meeting held on 02.12.2017 Annexure R-7 of the reply) and argued that action for recovery of the loans was initiated by all the members of the consortium. 12. We have carefully considered the arguments of the learned counsels of the petitioner and the corporate debtor and have also perused the records. 13. The instant petition is filed under Section 7 of the Code in the prescribed Form 1 by the financial creditor Oriental Bank of Commerce. The evidence of default has been furnished in Part IV of Form 1 and the account is stated to be classified as NPA on 30.08.2017. The bank account statements maintained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not applicable in the present case. 16. We also find from the minutes of the JLF meeting held on 16.09.2017 (Annexure R-4 of the reply) that the director of the corporate debtor sought time upto 15.10.2017 for submitting requisite documents for re-structuring and that a restructuring proposal was circulated amongst the member banks by the director of the corporate debtor in the JLF meeting held on 02.12.2017 (Annexure R-7 of the reply). However, the minutes note that various queries raised by the banks with regard to the revival plan were discussed with the representatives of the corporate debtor and in the absence of any suitable reply and few discrepancies in the restructuring proposal, the director of the corporate debtor assured to re-submit the plan soon but not later than 09.12.2017. However, admittedly, the revised plan was not submitted by that date. Therefore, the compliance as per the minutes of the JLF meeting held on 02.12.2017 was not made by the corporate debtor within the time allowed. 17. The learned counsel for the corporate debtor has placed a lot of reliance on the last sentence of para 6 of the minutes of the JLF meeting held on 02.12.2017 that all the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the reply) it has been discussed above that the circular does not predicate that restructuring in all cases will be done. We have also discussed that the re-structuring proposal submitted by the corporate debtor was examined in the JLF meeting held on 02.12.2017 and was not found to be in order and thereafter, the director of the corporate debtor assured to re-submit the plan sooner but not later than 09.12.2017 and the same was not done. Therefore, the issue of binding nature of RBI guidelines does not arise in the present case. It has been held in M/s Innoventive Industries Ltd. Vs ICICI Bank and Anr. Company Appeal (AT) (Insolvency) No.1 2 of 2017 by the Hon ble National Company Law Appellate Tribunal that the Adjudicating Authority is required to look into the satisfaction of the conditions under Section 7 of the Code and the Adjudicating Authority is not required to look into any other factor, including the question whether permission or consent has been obtained from one or other authority, including the JLF. Therefore, in view of the above discussion, the contention of the corporate debtor that the present petition is not maintainable and the re-structuring proposal i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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