TMI Blog2020 (9) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... revocated such proposal accordingly - there are no merit in the contention of the respondent-corporate debtor and pendency of any OTS cannot be an embargo in triggering the provisions under the Code. The second condition is that the application under Section 7(2) is complete. We have discussed the contents of the application above and we conclude that the application is complete. The third condition is that there are no disciplinary proceedings pending against the proposed Resolution Professional. In the present case, Shri Neeraj Bhatia, has been proposed as interim Resolution Professional. Form 2 filed by the proposed Interim Resolution Professional is at Page 92 to 92A of the petition. Shri Neeraj Bhatia has certified that there are no disciplinary proceedings pending against him with the board or Indian Institute of Insolvency Professional of ICAI. He has also affirmed that he is eligible to be appointed as a Resolution Professional in respect of the corporate debtor in accordance with the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporation Persons) Regulations, 2016. In view of the satisfaction of the conditions provided for in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Banking Regulation Act, 1949. The respondent-corporate debtor is a company incorporated and registered under the Companies Act, 2013. The certificate of incorporation of the respondent-corporate debtor is at Annexure P2 of the petition. 5. In Part IV of Form No.1, it is stated that respondent-corporate debtor approached the petitioner-financial creditor for availing a term loan of ₹ 16.25 Crores for the purpose of setting up corporate debtor s unit for manufacturing Galvanized Steel Pipes. The credit facility is stated to be disbursed on 26.11.2013. Copy of term loan and securities agreement dated 02.11.2013 is attached as Annexure P-3 of the petition. It is further stated that the respondentcorporate debtor has also availed a working capital facility for meeting the working capital requirement and the same was sanctioned to the corporate debtor vide Working Capital and Securities Agreement dated 02.11.2013. The credit facility is stated to be disbursed to the respondent-corporate debtor on 01.09.2014. Copy of Working Capital and Securities Agreement dated 02.11.2013 is appended with the petition as Annexure P-4. It is submitted that after availing the credit faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 calling upon the corporate debtor to pay the outstanding amount. Copy of SARFAESI Notice dated 06.02.2017 is appended as Annexure P-5 of the petition. 9. In Part-III of Form No1. Mr. Neeraj Bhatia, Registration No.IBBI/IPA- 001/IP-P00824/2017-18/11400 has been proposed as Interim Resolution Professional ( IRP ). Form No.2 dated 05.09.2018 submitted by the proposed IRP is stated to be attached at Page 92 to 92A of the petition. 10. Vide order dated 14.12.2018, notice of the petition was directed to be issued to the respondent-corporate debtor 11. Written statement on behalf of the respondent-corporate debtor was filed vide Diary No.3915 dated 06.08.2019. It is submitted that a group account has availed credit facilities from the petitioner-financial creditor and includes the loan accounts of Mir Steel Rolling Mills, Kings Transport Company, Humaira Nazir, SA Gold Ispat Pvt. Ltd., Mir Kings Industries Pvt. Ltd., Kings Transport Co., Shafeeq Ahmad Mir, Humaira Shafeeq, Shafeeq Ahmad Mir, Humaira Shafeeq Mir, Shaffeq Ahmad Mir and Humaira Shafeeq. It is further stated that the loan account of M/s Mir Steel Rolling Mills Pvt. Ltd. became irregular due to collapse of the shed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separate entities, containing own terms, have availed different credit facilities from the petitioner-financial creditor. It is also submitted that the averments made in Paragraph Nos. 4 and 5 of the reply, do not pertain to the instant petition which has been filed by the petitioner-financial creditor. It is also submitted that a working capital facility was also availed by the respondent-corporate debtor. It is also contended that due to the default in the repayment of the loan account, the respondent-corporate debtor account was classified as NPA in accordance with the RBI Guidelines. In relation to the OTS sanction, the petitioner-bank has stated that as no amount was deposited in the loan accounts, the bank was forced to revocate such sanction. It is also contended that the officers of the petitioner-bank never interfered into the business premises except for enforcement of its statutory rights of recovery. It was also denied that Bilal Hussan Anim and Safdar Ali Wani were the prospective purchasers of the unit and there was never any settlement between the parties to the suit filed by Bilal Hussan Anima and Safdar Ali Wani, before Sub Judge Pulwama, which resulted in any exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in Part III, particulars of the financial debt in Part IV and documents, records and evidence of default in Part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the debt , which may also include a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate- (a) the order under clause (a) of sub-section (5) to the financial creditor and the corporate debtor; (b) the order under clause (b) of sub-section (5) to the financial creditor, within seven days of admission or rejection of such application, as the case may be. 17. Section 7(5) of the Code provides for admission of the application where the Adjudicating Authority is satisfied that (a) a default has occurred; (b) the application under sub-section (2) of Section 7 is complete; (c) there is no disciplinary proceedings pending against the proposed Resolution Professional. The satisfaction of the three conditions is being examined below. 18. The first condition is that a default has occurred. The default in repayment of debt is supported by account statements filed by the bank at Annexure P6 and certificate under Section 2(A)(a) and 2(A)(b) of Bankers Book Evidence Act, 1891 in support of the account statements appended with the petition. It is the case of the respondent-corporate debtor that the account of the respondent-corporate debtor was wrongly declared as NPA while OTS proposal was kept pending by petitioner-bank. It is stated by the petitioner-bank th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y coercive measures and to make any publication of the names of the plaintiffcompany, promoters, directors, guarantors and co-borrowers to their person and property in the print and electronic media. 22. As held by the Hon ble NCLAT, in Binani Industries Limited Versus Bank of Baroda; CA No.82 of 2018 CIRP is not a money claim nor a suit or litigation. Hence, the interim order dated 26.06.2018 cannot come in the way of this Adjudicating Authority in initiation of CIRP against the respondent-corporate debtor, if all other requirements of the Code are satisfied. 23. With regard the Suit (Annexure R-13 and R-14 of the Written Statement) filed by Bilal Hassan Anim and Another, the said suit was not for any declaration that the respondent-corporate debtor was not liable to pay any amount more than ₹ 1 lac to the petitioner. Further, since, admittedly, the interim order dated 22.02.2019 was stayed by the Principal District Judge, Pulwama, in an appeal filed by the applicant-bank and also for the above referred reasons, the pendency of the said suit also cannot be treated as a predicament to initiate CIRP. 24. The second condition is that the application under Section 7(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arantee to a corporate debtor. 29. The order of moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33 as the case may be. 30. The Law Research Associate of this Tribunal has checked the credentials of Mr. Neeraj Bhatia and there is nothing adverse against him. The following directions are issued in respect of the appointment of the Interim Resolution Professional: - i.) Appoint Shri Neeraj Bhatia, P-27, 1st Floor, Malviya Nagar, New Delhi- 110017, having Registration No.IBBI/IPA-001/IP-P00824/2017-18/11400 and email address nbtrace1@yahoo.com, Mobile No.9810317585, as an Interim Resolution Professional; ii.) The term of appointment of Shri Neeraj Bhatia, shall be in accordance with the provisions of Section 16(5) of the Code; iii.) In terms of Section 17 of the Code, from the date of this appointment, the powers of the Board of Directors shall stand suspended and the management of the affairs shall vest with the Interim Resolution Professional and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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