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TMI Blog2020 (7) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... ault is stated to be 30.06.2015. BRIEF HISTORY OF THE CASE 3. The Petitioner is a schedule bank and is a body corporate constituted under the provisions of the Banking Companies (Acquisition and Transfer of undertakings) Act, 1970. And the Corporate Debtor is a company registered under the Companies Act, 1956. 4. The Petition reveals that the Petitioner Bank sanctioned term loan facility of Rs. 9,00,00,000/- and a cash credit facility of Rs. 6,00,00,000/- to the Corporate Debtor vide a sanction letter dated 14.08.2013. 5. The Petitioner had enclosed the following security and other documents in support of the loan: a. Sanction letter dated 14.08.2013. b. Extract of Board Resolution dated 31.08.2013. c. Demand promissory note executed by the Corporate Debtor on 26.09.2013. d. Pay bearer letter dated 26.09.2013. e. Multipurpose document L 516 dated 26.09.2013. f. Hypothecation and loan agreement dated 26.09.2013. g. Undertaking regarding payment of appropriate stamp duty dated 27.09.2013. h. Letter of instalments dated 26.09.2013 executed by the Corporate Debtor. i. Oral ascent executed by the Corporate Debtor on 26.09.2013. j. Deed of guarantee executed by Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained. REPLY OF THE CORPORATE DEBTOR 12. The Corporate Debtor filed reply to the petition not denying the liability but raising the following contentions: i. The revised OTS was processed and an upfront amount of Rs. 1.15 crore and an amount of Rs. 8 lakhs totalling to Rs. 1.23 crore has been deposited with the Petitioner. While it is pertinent to note that the Corporate Debtor had earlier made an deposit of Rs. 1.23 crore previously with respect to first OTS settlement offer, the total amount paid by Corporate Debtor to the Petitioner with respect to satisfying the loan amounts is to the tune of Rs. 2.46 crores. ii. The Corporate Debtor prayed to this Bench to direct the Petitioner to release and give peaceful possession of Hotel Tripur sundari in the same working and operating condition which was given as additional collateral by the Corporate Debtor to the Petitioner. Since the hotel mortgaged by the bank is worth more than the entire loan amount. iii. The Petitioner by its first proposal titled "BOI ONE TIME SETTLEMENT 2018 - BOI OTS 2018 Revised Offer" for one time settlement vide its letter ref. no. SoL/201819/PKS/OTS/2 dated 18.12.2018 was offered to the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acknowledged vide debit balance confirmation of 31.08.2015. This has also been duly acknowledged in the Balance sheet for the financial year 2015-16. 15. The bench also notes that CIBIL report confirming debt amount has been attached with the Petition. Therefore, it has been proved beyond doubt that the Corporate Debtor is in default of payment of Rs. 23.90 crore to the Petitioner i.e. Bank of India. 16. In fact, in reply dated 03.12.2018 by the Corporate Debtor, the Corporate Debtor has not contested that an amount is due and he is in default. The Corporate Debtor in its reply 03.12.2018 mentions that as per One Time Settlement Scheme (OTS) floated by the Bank on 20.06.2018, the Bank has given an opportunity to the Corporate Debtor to settle the amount as per the scheme. He further mentions that with the approval of the Board of Directors the Corporate Debtor has already made payment of about 5% of the outstanding balance as per the OTS-1 amounting to 80.25 lakhs to the Financial Creditor on 31.10.2018. He had also mentioned that in all probability the amount would be settled with the Financial Creditor. 17. It is for this reason that the Bench in its hearing up to 31.03.2019 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioning that this amount may vary. 21. Subsequently on 26.09.2019, the Bank intimated the Corporate Debtor about the approval of OTS-19 at a total amount of Rs. 12.3 crore (as the OTS amount, the Bank mentions, cannot be less than previous OTS amount) with the condition as under:- i. 10% of the OTS amount to be paid by 28.07.2019; ii. 4 posts dated cheques; iii. Resolution of the Board of the company accepting the OTS-19. 22. This Bench also takes note of the fact that, vide letter dated 28.07.2019 the Corporate Debtor agreed to deposit Rs. 1.23 crore as the upfront amount. Out of which Rs. 1.15 crores were already paid by the Corporate Debtor. Hence the balance amount of Rs. 8 lakhs has was deposited by the Corporate Debtor towards the upfront amount i.e. the 10% of OTS-19 amount. However, since there was neither any Board Resolution passed by the Corporate Debtor accepting the OTS19 scheme nor any further amount in addition to the initial 10 percent deposited, the Bank revoked the OTS -2019 for failing to adhere to the scheme in its entirety and non-communication of unconditional acceptance of terms and conditions with proper Board Resolution. 23. Therefore, it can be see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) of the SARFAESI Act, 2002 took symbolic possession of the mortgaged properties including the hotel. The Bench finds that the Financial Creditor acted in a legal manner and rightfully took possession of the Hotel Property. 25. In view of the above, this Bench has no doubt that the Corporate Debtor M/s. Katara Spinning Mills Limited had a total debt of Rs. 23.90 crores and also defaulted on OTS-2018 and OTS-2019 schemes. 26. Considering the above facts, the Bench concludes that the nature of Debt is a "Financial Debt" as defined under section 5 (8) of the Code. It has also been established that there is a "Default" as defined under section 3 (12) of the Code on the part of the Debtor. The two essential requirements, i.e. existence of 'debt' and 'default', for admission of a petition under section 7 of the I&B Code, have been met in this case. 27. Further, the Bench also perused the Form - 2 i.e. written consent of the proposed Interim Resolution Professional submitted along with this application/petition by the Petitioner and there is nothing on record which proves that any disciplinary action is pending against the said proposed Interim Resolution Professional. The Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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