TMI Blog2020 (10) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be accepted that the Corporate Debtor that there was no default. The default committed by the Corporate Debtor thus squarely falls within the definition of default as provided under Section 3(12) of the Code. There is debt as claimed in the Petition and the Corporate Debtor defaulted in making the payment. Hence petition deserves admission - Petition admitted - moratorium declared. - C. P. (IB) No. 4106/NCLT/MB/2018 - - - Dated:- 9-10-2020 - Hon ble Member (Judicial), Janab Mohammed Ajmal And Hon ble Member (Technical), Shri. V. Nallasenapathy For the Petitioner : Mr. A. K. Mishra and Mr. Rohan Agrawal with Ms. Almira Lasrado i/b MDP and Partners For the Respondent : Mr. Atul Singh, Advocate i/b AVS Legal ORDER Per : V. Nallasenapathy, Member (Technical) 1. This Company Petition is filed by Bank of Baroda (the Petitioner) (Formerly Dena Bank) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (the Code) read with Rule 4 of the Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rules, 2016 (the Rules) against Topworth Tollways (Ujjain) Pvt. Ltd. (the Corporate Debtor) for initiating Corporate Insolvency R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ault is 31/01/2016. 5. The Corporate Debtor filed reply to the Petition and raised the following contentions: a. The address of the registered office of the Corporate Debtor is incorrectly stated as Raheja Centre, Office No. 4, Ground Floor, 214, Free Press Journal Marg, Nariman Point, Mumbai 400 021 . The registered office of the Corporate Debtor was actually shifted to 16th Floor, Tower-3, Indiabulls Finance Centre, Senapati Bapat Marg, Elphinstone Road, Mumbai w.e.f 5th May 2016 . b. The Form - 1 incorrectly records the name of the Petitioner as Oriental Bank of Commerce instead of Dena Bank . The requisite fee of ₹ 25,000/- (Rupees Twenty Five Thousand only) was paid by Oriental Bank of Commerce and not by the present Petitioner. c. The Petition is not maintainable for want of sufficient authority of the person claiming to be authorised to initiate the CIRP under the Code. d. The Form - 2 filed by the Resolution Professional (RP) is also not in order for the reason that the proposed Interim Resolution Professional (IRP) issued the Form for the appointment of him as IRP by the Union Bank of India and not by the Petitioner. e. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f payment would fall on 03/03/2016. The date of default mentioned as 31/01/2016 is not correct. i. The MPRDC under the concessions agreement, considering the cancellation of toll collection on account of Simhastha Parv , 2016 extended the toll collection period equivalent to the suspension period. However, it is submitted that because of the gap in toll collection the Corporate Debtor was unable to cover the backlog dues payable to the Petitioner. Hence it is submitted that the Corporate Debtor is not responsible for the occurrence of the default. j. All the toll collections are credited to the escrow account operated by the lead bank and the lead bank has not made payment to the Petitioner from the escrow account. k. The amount claimed to be in default is completely incorrect. The amount claimed in the petition is ₹ 49.92 Crores including interest and penal interest. The petitioner instead of claiming only the defaulted interest and the defaulted principal pertaining to the specified quarter, claimed the entire amount. Hence the amount claimed in the petition is wrong. 6. We have heard both the sides at length. We are of the view that mention of incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default, does not have legs to stand in a Petition under Section 7 of the Code. 9. The statement of account produced by the Petitioner clearly shows that the interest due as on 31/01/2016 was paid only on 16/07/2016. The principal due of 31/03/2016 was paid on 23/08/2016. Even assuming, without accepting the contention of the Corporate Debtor, that the date of default of interest was on 03/03/2016, the payment having been made much later i.e. on 16/07/2016, the commission of default is clear. We are unable to accept the argument of the Corporate Debtor that there was no default. The default committed by the Corporate Debtor thus squarely falls within the definition of default as provided under Section 3(12) of the Code. 10. The contention of the Corporate Debtor that the whole outstanding of ₹ 49.92 Crores shown as defaulted is incorrect and cannot be accepted for the reason that when a single payment of interest or principal is defaulted the Petitioner is entitled to claim the entire amount under the acceleration clause as provided in clause 7.2 of the Common Loan Agreement which provides as below: 7.2 CONSEQUENSES OF DEFAULT If one or more of the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor. 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 disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted. 12. The above discussion clearly reveals that there is debt as claimed in the Petition and the Corporate Debtor defaulted in making the payment. Hence petition deserves admission. 13. The Petitioner has proposed the name of Mr Anuj Bajpai, a registered Insolvency Resolution Professional having Registration Number [IBBI/IPA-001/IP-P00311/2017-18/10575] as Interim Resolution Professional, to carry out the functions as mentioned under the Code. In Form 2 annexed to the Petition, the proposed IRP has declared that no disciplinary proceedings are pending against him. 14. The Petition under sub-section (2) of Section 7 of the Code is complete. The existing financial debt of more than rupees one lakh is due and pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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