TMI Blog2021 (3) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... ecured nonconvertible debentures of an aggregate amount of ₹ 55,00,00,000/- by the Corporate Debtor. The Debenture Trustee has been placed on record by the Petitioner. Also the list of secured documents by way of which the credit facility was secured is placed on the record. 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 qualifications, 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 - it is found that the Petitioner has not received the outstanding Debt from the Respondent and that the formalities as prescribed under the Code have been completed by the Petitioner, we are of the conscientious view that this Petition deserves Admission . Petition admitted - moratorium declared. - CP No. 783/IBC/NCLT/MB/MAH/2020 - - - Dated:- 5-3-2021 - Hon ble Smt. Suchitra Kanuparthi, Member (J) and Hon ble Shri. Chandra Bhan Singh, Member (T) For the Petitioner : Mr. V. R. Dhond, Advocate. For the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts made and the calculation of the outstanding principal amount and the interest amounts is attached to the petition. On 17.05.2019, the account of the Corporate Debtor was declared as non-performing asset (NPA). 10. Thereafter on 01.01.2020, the Debenture Trustee issued a notice of default to the Corporate Debtor since an Event of Default had arisen. On 27.02.2020, the total outstanding amount was ₹ 71,32,09,849/-. The Petitioner filed the present Petition on 03.03.2020. SUBMISSIONS BY THE CORPORATE DEBTOR IN WRITTEN SUBMISSIONS: 11. The Corporate Debtor failed to file its reply to the petition. However, around the conclusion of the hearing before the Bench, it filed their written submissions. 12. The ECL Finance Limited, the Assignor Bank sanctioned a total amount of credit facilities of ₹ 85,00,00,000/- to the Corporate Debtor on 20/11/2016 vide sanction letter Nos. ECLF/NCD/2024 and ECLF/REAP/2030. 13. The Assignor Bank had originally promised and assured the Corporate Debtor that it would grant a loan of ₹ 85,00,00,000/- to enable the Corporate Debtor to proceed with the construction of its project at Bandra being redevelopment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as an Escrow Agent and a no lien bank account bearing No. 041103500000060 was opened by the Corporate Debtor with HDFC Bank Ltd. All the receivables arising out of the said project were to be deposited in this account and the entire project cost including payment of various monies to ECL such as interest payment, payment of fees, costs, charges and expenses towards construction, obtaining approvals etc. were to be made from this account. Therefore, as required by the Petitioner, the Corporate Debtor executed all the above documents in respect of the financial assistance of ₹ 55,00,00,000/- granted by the Petitioner. 18. The Corporate Debtor further submitted that the amount of ₹ 55,00,00,000/- which was disbursed by the Petitioner to the Corporate Debtor under the Debenture Trust Deed and other security documents were utilised by the Corporate Debtor for making payment to the New Kamal Kunj Cooperative Housing Society on account of corpus fund and acquisition of certain areas. Further, out of this amount of ₹ 55,00,00,000/- the Corporate Debtor paid advance rent to the existing members of the society pursuant to which they vacated their respective premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he initiation and completion of the Corporate Insolvency Resolution Process shall take considerable time and their lives and livelihoods shall be severely affected. 23. Further the Corporate Debtor mentions that the Corporate Debtor is ready and willing to settle the captioned matter if the Corporate Debtor is given some time so as to arrange for funds and therefore, it is not required to admit the present Petition. 24. The Corporate Debtor further states that the present Company Petition is not maintainable and is barred by Limitation. The Petitioner has filed the present proceedings claiming a debt amount of ₹ 71,32,09,849/-. The Petitioner has not provided any document, record or evidence which acknowledges the alleged debt by Corporate Debtor 3 years prior of filing of the Writ Petition. Therefore, in view of Article 137 of Limitation Act, 1963 read with Section 238A of IBC, the present Petition is barred by limitation and not maintainable. 25. It is further submitted that the present Petition is defective on account of non-compliance of mandatory requirement u/s 7 (3) (a) of the IBC. As per section 7 (3)(a) of the said IBC, the Petitioner is required to fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, before the Bench has also been produced the details of the principal, interest accrued, default on interest and details of penalty in a tabular form as provided by Financial Creditor. 32. The Bench notes that the above table is also important as it clearly demonstrates that the payment made by the Corporate Debtor starting from 30.12.2016 and continuing through several dates in 2017, 2018 and 2019. The last payment was made on 16.04.2019. The Bench notes that the Assignor Bank i.e., ECL Finance Ltd. disbursed the total amount of ₹ 55,00,00,000/- on 20.11.2016 and the Petition was filed in NCLT on 02.03.2020. It can be seen that in terms of Sec. 19 of the Limitation Act, it is well covered under the Limitation Act. The Bench also note that as no payment was made by the Corporate Debtor after 16.04.2019. The account of the Corporate Debtor was declared as NPA on 17.05.2019. The Bench also notes that the Assignor Bank had assigned the debt payable under NCDs in favor of the Petitioner vide an Assignment Agreement dated 21.05.2019 and on the date of assignment, an amount of about ₹ 58,57,21,160/- including interest was payable to the Assignor Bank by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Admission . 37. Further that, we have also perused the Form 2 i.e. written consent of the proposed Interim Resolution Professional submitted along with this application/petition by the Financial Creditor and there is nothing on record which proves that any disciplinary action is pending against the said proposed Interim Resolution Professional. 38. The Financial Creditor has proposed the name of Insolvency Professional. The IRP proposed by the Financial Creditor, Mr. Prashant Jain, having registration No. IBBI/IPA-001/IP-P01368/2018-2019/ 12131, is hereby appointed as Interim Resolution Professional to conduct the Insolvency Resolution Process. 39. Having admitted the Petition/Application, the provisions of Moratorium as prescribed under Section 14 of the Code shall be operative henceforth with effect from the date of order, and shall be applicable by prohibiting institution of any Suit before a Court of Law, transferring/encumbering any of the assets of the Debtor etc. However, the supply of essential goods or services to the Corporate Debtor shall not be terminated during Moratorium period. It shall be effective till completion of the Insolvency Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X
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