TMI Blog2022 (1) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial Creditor is not maintainable is devoid of any force or substance. Hence the same is liable to be rejected and accordingly the same is hereby rejected. Whether the applicant herein has made out a case for initiation of Corporate Insolvency Resolution Process (CIRP) against the respondent/Corporate Debtor? - HELD THAT:- When admission of debt in this case being as clear as crystal and as the applicant by placing the undisputed demand notice dated 22.05.2018 issued under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), has also established default on the part of the Corporate Debtor this application of the financial creditor has fully satisfied the requirements viz, existence of debt and default in repayment of the said debt on the part of the respondent corporate debtor, as such this application is liable to be admitted and initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor is bound to be ordered. The respondent Corporate Debtor, M/s. Ind Barath Thermal Power Ltd, is admitted into Corporate Insolvency Resolution Process under section 7 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and machinery together with accessories and further created hypothecation of various assets as detailed in clauses (a) to (f) on pages 10-11 of the petition. (iv) M/s. Ind Barath Power Infra Limited, the Sponsor of the Corporate Debtor created pledge, through Security Trustee-Vistra ICL (India) Limited, 51% of shares of the borrower in order to secure credit facilities from time to time on the basis of deed of pledge executed from time to time as detailed in clauses (a) and (b), at page 12 of the petition. (v) Aarkey Energy (Rameshwaram) Limited also pledged its shareholding of 51% in the Corporate Debtor, of the issued and paid up to secure the outstanding debt and executed the documents as detailed in clauses (a), (b) and (c), at page 12 of the petition. Copies of documents are at ANNEXURE A-26 COLLY. The estimated value of the aforementioned security has been assessed as ₹ 872.63 crores as per Valuation Report (ANNEXURE-28). 5. It is further averred that on account of continuous default on the part of the Corporate Debtor, on 31.03.2018 its account has been classified as a Non-Performing Asset and the Financial Creditor has taken the following steps for realis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adha Company LLP 8B Chartered Accountants on 18.03.2020. 7. The gist of the rejoinder filed by the Financial Creditor is as under: Proceedings before the Hon'ble NCLAT relate to settlement between the parties. Thus the said orders have no applicability to the present petition. The averments made with regard to transactions between the Corporate Debtor and TANGEDCO relate to Corporate Debtor and its customer (TANGEDCO), hence it does not have any impact on the present petition. The project of the Corporate Debtor was under stress. The Financial Creditor denied that the account of Corporate Debtor was declared NPA due to omission of the petitioner. Because of failure of Corporate Debtor to adhere to RBI guidelines the account of Corporate Debtor was declared NPA. Lenders have rightly filed OA before Debt Recovery Tribunal. Financial Creditors are within their right to invoke pledge. However, management was always with directors of the Corporate Debtor. The Financial Creditor pleaded that there is no such in principle approval to sell the Corporate Debtor/company as a going concern and contended that it goes contrary to the record. Notice of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsection (6A) of section 21, an application for initiation corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent, of the total number of such creditors in the same class, whichever is less: Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent, of the total number of such allottees under the same real estate project, whichever is less: Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first or second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, such application shall be modified to comply with the requirements of the first or second prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into by us with YOU, as the Lead bank and the member Banks i.r.o. the Working Capital loan facilities granted to us and/or agreed to be granted to us by YOU and the Member banks, hereinafter referred to as the Bank Consortium and the charge by way of hypothecation created by us on our current assets as mentioned therein to secure all sums standing at the foot of the Working Capital Loan account(s) or other account(s) with YOU and the Member Banks i.r.o. such facilities. We do hereby confirm that all the security documents executed by us in favour of YOU and the Member Banks i.r.o. such facilities are subsisting, valid and effective and are fully enforceable against us. We do hereby acknowledge for the purposes of section 18 of the Indian Limitation Act, 1963 and in order to preclude any question being raised on limitation regarding our liability to your bank and the Member Banks for the payment of the outstanding amounts i.r.o. the present as well as the future indebtedness and liabilities under the said Working Capital Loan account(s) or other account(s) together with interest, compound interest, additional interest, liquidated damages, costs, charges expenses and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Central Excise, Haryana, (2011) 11 SCC 528. Held. To get benefit of notification granting exemption, claimant has to show that he satisfies eligibility criteria - appellants failed to bring any such evidence on record. We find that on facts the above ruling is not applicable to the resent case. (iii) Debasish Som Vs. Meenakshi Energy Limited others. Order dated 13.10.2020 rendered by the Hon'ble Supreme Court of India in Civil Appeal No. 3307 of 2020. Since the above ruling focused on issuance of notice, we find that on facts the above ruling is not applicable to the present case. (iv) India Power Corporation Ltd. Vs. Meenakshi Energy Ltd and others. Judgment dated 10.09.2020 rendered by the Hon'ble NCLAT in Company appeal (AT) (Insolvency) No. 1220 of 2019 with Company appeal (AT) (Insolvency) No. 1450 of 2019. Held. The Financial Creditor has not filed the application under section 7 of I B Code, in pursuance of the RBI Circular dated 12.02.2018 and even after invocation of the pledged shares by SBI CAP Trustee Company Ltd., the Financial Creditor can maintain the application. Learned AA has rightly admitted the application under section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concessions, clearances or a similar grant or right during the moratorium period. (E) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (F) That the order of moratorium shall have effect from the date of this order till the 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, whichever is earlier. (G) That the public announcement of the initiation of Corporate Insolvency Resolution Process shall be made immediately as prescribed under section 13 of Insolvency and Bankruptcy Code, 2016. (H) That this Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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