TMI Blog2018 (3) TMI 1913X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition under section 10 is a step towards the said direction. As far as the corporate debtor's filing of this petition is concerned, this is not a case that the fact about the order of the hon'ble Delhi Court was concealed. Considering the voluminous evidences in 8 Volumes annexed along with the application and in the light of the provisions of section 10 of the Code I hereby hold that the conditions as prescribed under section 10 of the Code have duly been fulfilled. Since this is a petition of the corporate debtor , therefore, the insolvency process shall commence as prescribed under section 10 of the IBC, 2016. On one hand the existence of financial debt as well as operational debt is proved, on the other hand the occurrence of default is also established. The corporate debtor had failed to pay the amounts due and also failed to adhere to or comply with the other terms of facility agreements. The financial debts have been classified as non-performing asset in the books of the financial creditor. The petition under consideration therefore deserves admission . Petition admitted - moratorium declared. - C. P. (IB) No. 298/MB/2018. - - - Dated:- 12-3-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aborated in the following paragraphs . As per the revised framework it is advised for early identification and reporting of stressed assets. As soon as a default is detected by a lender, singly or jointly, directed to take steps to cure the default. Revised prudential norms for restructuring under IBC framework or outside the IBC have been issued for exposure to borrowed entities against whom insolvency applications are filed under the IBC. Apart from several other clauses of the said Notification, an important decision has also been communicated, i. e., withdrawal of extant instructions reproduced below : The extant instructions on resolution of stressed assets such as framework for revitalising distressed assets, corporate debt restructuring scheme, flexible structuring of existing long-term project loans, strategic debt restructuring scheme (SDR), change in ownership out side SDR, and scheme for sustainable structuring of stressed assets (S4A) stand withdrawn with immediate effect. Accordingly, the joint lenders' forum (JLF) as an institutional mechanism for resolution of stressed accounts also stands discontinued. All accounts, including such accounts where any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resolution process 12 months preceding the date of making of the application. Since none of the above conditions are applicable on the applicant, hence, it is prayed that the application under con sideration be admitted . 1.3 The learned senior advocate has also informed that a law and order problem is happening because of the reason that the bank account of the corporate debtor is freezed. There is a TRA account which is not allowed to be operated by Aircel Ltd. The company is not making the payment to its staff and employees due to the action of the bank authorities, not allowing to operate the said account. All revenue generation and income is agreed upon to be deposited in TRA account but now it is freezed. Around 59 to 60 crores rupees are freezed. He has vehemently pleaded that if this petition is admitted then the insolvency resolution professional shall take charge of the affairs of the company and the company thereupon can run the business. Otherwise, owing to several problems created by the financial and operational creditors the company shall have no option but to shut down the business, or the business may be suspended by operation of law. 1.4 An apprehension ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tached describing the financial creditors as under : Amount in INR February 20, 2018 Sl. No. Bank name Sanctioned amount (Aircel group) Drawdown date Loan agreement date Amount outstanding Current Non-current 1. Jammu and Kashmir Bank* 3,800,000,000 3-6-2014 29-3-2014 3,296,100,000 82,402,500 3,213,697,500 2. State Bank of India* 48,900,000,000 31-5-2014 29-3-2014 50,000,000 1,250,000 48,750,000 3. Punjab Natio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, Standard Chartered Bank and the outstanding loan figures as on February 20, 2018 is described as under : Non-fund based facility Aircel Ltd., as on February 20, 2018 Secured facilities Sanctioned amount (Aircel Group Facility) Aircel Ltd. LC Buyer credit Bank guarantee Over dues Total State Bank of India 3,000 Punjab National Bank 400 813.63 4.03 272.49 433.86 1,524.01 Total 3,400 813.63 4.03 272.49 433.86 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing (as on February 20, 2018) : ₹ 19889,00,10,591 List of names of the operational creditors along with their respective addresses and amounts outstanding is annexed herewith and marked as annexure No. II(A). Findings 3. Heard both the sides. Case records perused. As per the Preamble a practical motive is intended behind the incorporation of this Code. The I and B Code, 2016 was enacted to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, that too in a time bound manner, for maximization of value of assets of a corporate debtor. The purpose of CIRP is to promote entrepreneurship, side by side to balance the interest of all stakeholders. A petition either filed under section 7, under section 9 or under section 10 is to be admitted to achieve the said goal also to consider the objectives enshrined in the Preamble and the purpose for which this Code came into operation. 3.1 Although on the face of such a petition it appears strange that why a corporate body itself is taking step to be declared insolvent by moving an application unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pendency of the litigation. The said preliminary order was passed even before the respondent Aircel had filed an affidavit-in-reply before the High Court. Thus as per the interim order the respondent-company Aircel was restrained from disposing of its assets or to create third party interest. The injunction is against the respondent not to take further steps . In my humble understanding the hon'ble court has not directed the respondent restraining to take due recourse provided under any provision of law so that the liability of the petitioner GTL be secured, if possible, along with other stakeholders. Any judicial authority shall encourage such move on the part of the debtor. Filing of the petition under section 10 is a step towards the said direction. As far as the corporate debtor's filing of this petition is concerned, this is not a case that the fact about the order of the hon'ble Delhi Court was concealed. Learned counsel of the corporate debtor has pointed out that a conscious decision was taken by the corporate debtor in good faith to file this petition under section 10 keeping in mind the order of the hon'ble High Court so that the corporate debtor can in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rolled by the lenders to protect credit risk, i. e., the risk of debt service default. In this account substantial deposit is lying, however, the debtor company is not allowed to use the same for running day to day business. Due to this reason, the entire revenue generation is freezed resulting into non-payment of salary and necessary expenditure. There is an apprehension of law and order situation because the vendors, employees and other small trade creditors are seriously agitating for their respective dues. Naturally, this situation is to be avoided as early as possible so that the business of the company must not affect adversely. 4. The apprehension of suspension of telecom licence by the DoPT is also well founded, due to the overall stressed financial position. For the revival a resolution plan can be an appropriate answer to all these problems. 5. Prima facie it has also been demonstrated that there is a scope of revival of the company and also betterment in revenue generation. The petitioner has placed certain figures of revenue generation that in the month of December, 2017 GSM revenue was ₹ 5,811 million which had gone down in the January, 2018 to ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vijaykumar V. Iyer, address : Deloitte Touche Tohmatsu India LLP, Indiabulls Finance Centre, Tower 2, 27th Floor, Senapati Bapat Marg, Elphinstone Road (West), Mumbai-400 013, e-mail : viyer@deloitte.com. Registration No. IBBI/IPA-001/IPP00261/2017-18/10490 in Part-II of Form No. 6 and the said IRP has given his consent in Form No. 2, placed on record. 8. The petition is hereby admitted . As a consequence, the moratorium shall commence as prescribed under section 14 of the I and B Code which prohibits as under : (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, Tribunal, arbitration panel or other authority. (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein. (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002). ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel pleaded to join as an intervener before admission of section 10 application. Referred a decision of the hon'ble Delhi High Court dated January 29, 2018 titled as GTL Infra structure Ltd. v. Aircel Ltd. (O. M. P. (I) (COMM.) No. 40 of 2018 and I. A. No. 1214 of 2018). (3) On hearing learned senior counsel Mr. Janak Dwarkadas for the petitioner and learned counsel Mr. Ashish Kamat for the impugned intervener, it is appropriate to formulate a question of law that whether an operational creditor be allowed as an intervener while adjudicating the 'admission' of an application filed under section 10 of the I and B Code moved by a corporate debtor ? (4) Considering the facts and the provisions of the Code, the answer to the above question is in negative. The operational creditor at this preliminary stage is not allowed to be made as an intervener. The conscientious view is that the application filed under section 10 of the Code deserves admission . Ordered accordingly. Reasoned order shall follow. The promoters/directors/CMD are hereby directed not to leave the country without permission or till further orders. 11. That the directions contained and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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