TMI Blog2022 (11) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... of the debt. The present petition made by the Financial Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time. Petition admitted - moratorium declared. - I.A. (IB) No. 318/KB/2022 and CP (IB) No. 347/KB/2020 I.A. (IB) No. 318/KB/2022 - - - Dated:- 28-10-2022 - Shri Rohit Kapoor : Member (Judicial) And Shri Balraj Joshi : Member (Technical) For the Financial Creditor : Mr. Soorjya Ganguli, Advocate Ms. Kiran Sharma, Advocate For the Corporate Debtor : Mr. Swatarup Banerjee, Advocate Mr. Avishek Guha, Advocate Mr. S. Haque, Advocate Mr. Chitresh Saraogi, Advocate ORDER [I.A. (IB) No. 318/KB/2022 and CP (IB) No. 347/KB/2020] Per Rohit Kapoor, Member (Judicial) 1. This Court convened through hybrid mode. I.A. (IB) No. 318/KB/2022 2. This I.A. has been filed by E Village Kendra Limited praying for directions to place the Supplementary Affidavit on record. Submissions of Mr. Swatarup Banerjee, learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Eighty Crore only) vide sanction letter 24 March 2018 and Loan Agreement dated 26 March 2018. 10. The Corporate Debtor was liable to pay a sum of Rs.4,55,85,617/- (Rupees Four Crore Fifty Five Lakh Eighty Five Thousand Six Hundred and Seventeen only) on 22 November 2018 as interest for the period of 01 July 2018 to 30 September 2018 in respect to the facility letter dated 15 January 2019 and a sum of Rs. 14,18,21,918/- (Rupees Fourteen Crore Eighteen Lakh Twenty One Thousand Nine Hundred and Eighteen only) as interest for the period of 01 July 2018 to 30 September 2019 in respect to the facility letter dated 15 January 2018. 11. The Corporate Debtor was also required to pay a sum of Rs. 14,18,21,918/- (Rupees Fourteen Crore Eighteen Lakh Twenty-One Thousand Nine Hundred and Eighteen only) as interest for the period of July 1, 2018 to September 30, 2018 in respect of the facility letter dated March 24, 2017 12. A notice dated 22 November 2018 was issued to the Corporate Debtor by the Financial Creditor, for payment of dues, but the Corporate Debtor failed to comply with the said notice. 13. On November 23, 2018, the Applicant demanded payment of Rs. 95,95,88,630/- (Rupee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition] f. A copy of the notice dated November 27, 2018. [Annexure N @ Pgs. 139-140 of the Company Petition] g. A copy of the computation of the amount of default from the two term loan facilities. [Annexure O @ Pgs. 141-147 of the Company Petition] h. A copy of the deed of hypothecation dated May 17, 2018. [Annexure P @ Pgs. 148-159 of the Company Petition] i. A copy of a demand promissory note executed by the Corporate Debtor, whereby, they agreed to pay the Applicant the sum of Rs. 90,00,00,000/- (Rupees ninety crore only) with interest at the rate of 12.75% per annum. [Annexure Q @ Pg. 160 of the Company Petition] j. A copy of a demand promissory note executed by the Corporate Debtor, whereby, they agreed to pay the Applicant the sum of Rs. 280,00,00,000/- (Rupees two hundred and eighty crore only) with interest at the rate of 12.75% per annum. [Annexure R @ Pg. 161 of the Company Petition] k. A copy of the letter of awareness dated March 29, 2017 executed by SREI Infrastructure Finance Limited. [Annexure S @ Pgs. 162- 164 of the Company Petition] l. A copy of the letter of awareness dated March 27, 2018 executed by SREI Infrastructur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computer systems as evidence under Bankers' Books Evidence Act, 1891 to a court of law, the data must be accompanied by a certificate prescribed under section 2A(a) and (b) of the Bankers' Books Evidence Act, 1891 and in the absence of such statutory certificate, the court would not be obliged to admit the document in evidence without any further proof, in the present case the Financial Creditor being a Non-Banking Financial Corporation has submitted data stored in it s computer systems as evidence under as Evidence to a court of law, the data must have been accompanied by a certificate prescribed under Section 65B(4) of the Evidence Act 1872 and in the absence of such statutory certificate, the court cannot admit the document in evidence without any further proof. c. He further referred to section 7(3) of the Code that the Financial Creditor has to prove the default recorded with information utility or evidence of default and the Financial Creditor has failed to establish and provide legitimate evidence of default with a certificate under section 65B(4) of the Evidence Act, 1872. d. The learned Counsel placed reliance on Arjun Panditrao Khotkar v. Kailash Kushanrao ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d default of the Corporate Debtor. 26. The Corporate Debtor has only objected to the admission of the calculation sheet submitted by the Financial Creditor, but has not objected to the fact that the Corporate Debtor was not in default. From the Bank Statements filed in the Supplementary Affidavit, it is clear that the Corporate Debtor has defaulted in payment of the debt. 27. The present petition made by the Financial Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time 28. Further, the IA filed by the Corporate Debtor seeking permission to file a supplementary affidavit to bring on record the default of the Financial Creditor cannot be accepted specially at this stage, when the burden of proof for due payment is on the Corporate Debtor, no good can come from washing the dirty linen of the Financial Creditor instead. Hence, the I.A. is liable to be dismissed. 29. In the light of the above facts and circumstances, it is, hereby ordered as fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned Police Authorities to render all assistance as may be required by the Interim Resolution Professional in this regard. h. The IRP/RP shall submit to this Adjudicating Authority periodical report with regard to the progress of the CIRP in respect of the Corporate Debtor. i. The Financial Creditor shall deposit a sum of Rs 3,00,000/- (Rupees Three Lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). j. In terms of section 7(5)(a) of the Code, Court Officer of this Court is hereby directed to communicate this Order to the Financial Creditor, the Corporate Debtor and the IRP by Speed Post, email and WhatsApp immediately, and in any case, not later than two days from the date of this Order. k. Additionally, the Financial Creditor shall serve a copy of this Order on the IRP and on the Registrar of Companies, West Bengal, by all available means for updating the Master Data of the Corporate Debtor. The said Registrar of Companies shall send a compliance report in this regard to the Registry of this Court within seven days from the date of receip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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