TaxTMI 
TaxTMI 
2017 (8) TMI 491
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....re initially provided by the Oriental Bank of Commerce, Nepeansea Road, Mumbai to the Debtor Company stated to be in the Trading Business of Medical Equipment used for diagnostic purpose. A legal notice dated 25th August, 2004 was issued under section 13(2) of the SARFAESI Act describing therein the nature of facilities reproduced below :- "Sr. No. Nature of Facilities 1. Cash Credit (Hypothecation upto to a limit of Rs. 25 lacs, Usance bills discounted up to a limit of Rs. 20 lacs and Import L/C up to a limit of Rs. 15 lacs; 2. Cash Credit (Hypothecation upto to a limit of Rs. 45 lacs, Usance bills discounted up to a limit of Rs. 40 lacs and Import L/C up to a limit of Rs. 45 lacs; 3. Cash Credit (Hypothecation upto to a limit of Rs. 95 lacs, (with sub-limit of Rs. 30 lacs for book debts), Cheque Discounting upto a limit of Rs. 10 lacs, Supply Bill up to a limit of Rs. 20 lacs, Import L/C up to a limit of Rs. 60 lacs and Term Loan up to a limit of Rs. 0.30 lacs. 4. Enhancement of CC from Rs. 95 lacs to Rs. 120 lacs; 5. Enhancement of CC from Rs. 120 lacs to Rs. 130 lacs; 6. Enhancement of CC from Rs. 130 lacs to Rs. 155 lacs; 7. Cash Credit (Hypothecation upto to a....
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.... 5,00,00,000/- (Rupees Five Crore Only). 4. Flat Nos. 53 and 57, Anand Apartments, Casa Egmore, Chennai (a) Date of Creation : Equitable Mortgage first created on 24.07.1998. The same was modified & extended on 07.10.2002. (b) Estimated Value: INR 60,00,000/- (Rupees Sixty Lakhs Only.) 5. Two (2) DDA flats, being 99-B and 100-B, Group 1, Pocket 12, Jasola, New Delhi (negative lien on the flat, no mortgages created). (a) Date of Creation : Negative lien created on 01.11.1999. (b) Estimated Value: INR 50,00,000/- (Rupees Fifty Lakhs Only.) 6. Stocks of surgical equipment's, clinical, pathological, chemical reagents. (a) Date of Creation : Agreement for Hypothecation and Goods dated 12.12.1995. Extension of Mortgage to secured enhanced limits as and by way of Ninth Modification date 11.09.2002." 2.2 Thereafter, vide "Deed of Assignment" dated 26th August, 2008 the debt was assigned to Asset Reconstruction Company of India Limited (ARCIL) Mumbai. Proceedings were initiated before Debt Recovery Tribunal, Mumbai (EXH.185 and 188 in O.A. No. 89/2005) which was fi....
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....ty of the mortgage said to have been created by the Applicants basing on an insufficiently stamped documents as on the date of issuing demand notice. The counsel appearing for the Applicants also relied on some case law in support of his contention so far as issuing demand notice and reply to the representation through an Advocate. Mr. Rajesh Nagori, the counsel appearing for the Respondent vehemently opposed the above pleas taken by the Applicants and also relied upon some case law in support of his contentions. Disregarding the merits of the above legal pleas raised by the Applicants, the counsel appearing for the Applicants on instruction from his client who is present in the court hall across the Bar submitted that his clients are ready and willing to deposit Rs. 50 Lacs within one week, another Rs. 50 Lacs within one week thereafter and Rs. 2 Crores within six weeks thereafter to show their bonafides. Since we are at the stage of granting interim relief and since the secure asset is a residential Flat in which the borrowers/mortgagors are claiming to be residing and since the Applicants have expressed inclination to deposit the above amount, it is just and reasonable ....
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....rt dated 30th September, 2010 pronounced in the case of ICICI Bank Ltd. v. Official Liquidator of APS Star Industries Ltd. [2010] 104 SCL 37/7 taxmann.com 72 wherein a view was expressed by placing reliance on a precedent that the Assignment of a Debt is not contrary to Public Policy solely on the ground that the Assignee had purchased the Debt for a discounted price. Nor will the assignment be contrary to Public Policy simply because the Assignee will make a profit on the transaction at the end of the day. It has also been expressed that the N.P.A. are created on account of breaches committed by the Borrower. It happens when a Borrower violates its obligation to repay the debt. A recent decision of NCLT Mumbai in the case of Schweitzer Systemtek India (P.) Ltd. v. Phoenix ARC (P.) Ltd. in T.C.P. NO. 316/I&BP/NCLT/MB/MAH/2017 decided on 3rd July, 2017 by N.C.LT. Mumbai Bench is also cited. 4. FINDINGS :- Both the sides are heard at some length. At this Preliminary Stage of "Admission" it is not obligatory to discuss exhaustively the Terms and Conditions of the Loan Agreement or the time to time Revival of Debt or clauses of Deed of Assignment etc. Keeping brevity in mind only the ....
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....the liabilities as under :- ALPHA & OMEGA DIAGNOSTICS (INDIA) LIMITED PROVISIONAL (UNAUDITED) BALANCE SHEET AS AT 05.06.2017. "Particulars Note No. 5th June-17 I. EQUITY AND LIABILITIES (1) Shareholders Funds 3,321,250 (a) Share Capital 2 (10,641,512) (b) Reserve & Surplus 3 (2) Non-Current Liabilities (a) Long Term Borrowings 4 1,30,22,911 (b) Deferred Tax Liabilities (Net) 3,97,673 (c) Other Long Term Liabilities (d) Long Term Provisionals (3) Current Liabilities (a) Short Term borrowings 5 3,50,78,888 (b) Trade payables 15,71,417 (c) Other current Liabilities 6 25,40,885 (d) Short Term provisions (Earlier Year) 7 9,40,042 Short Term provisions (Current Year) 7,37,336 TOTAL 4,69,68,891" 4.3 As per the said provisional balance sheet the position of the Assets are as under:- "Particulars of Assets Note No. 5th June-17 II. EQUITY AND LIABILITIE....
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....tion of the Balance Sheet it has also been noticed that there are other Creditors under the Head "Short Term Borrowings", "Trade Payable" and "Current Liabilities". The Schedule as well as the details of these liabilities as on that date are not annexed hence not discussed in depth. An Insolvency Resolution Professional is a right person to examine this aspect as well and also to ascertain the fate of such Creditors. For this reason I am of the view that the Application is required to be "Admitted". 4.7 On examination of the balance sheet (provisional) it transpires that there is a contrast between the assets disclosed and the corresponding liabilities shown. The provision for realization of debt appears to be significantly insufficient comparing the assets (whether tangible or intangible) of the Company. The Insolvency Professional can iron out all these creases. I am of the view that by the assistance of an expert such discrepancy can be resolved. For this reason as well the "Admission" is hereby approved. 4.8 Nevertheless, the decision on "Admission" as pronounced hereinabove is subject to a qualification. The I&BP Code, 2016 has prescribed certain limitations which are inbuil....
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....g any action to recover or enforce any security interest created by the Corporate Debtor in respect of "its" property. Relevant section which needs in-depth examination is section 14(1)(c) of The Code. 7. There are recognised canons of interpretation. Language of the Statute should be read as it existed. This is a trite law that no word can be added or substituted or deleted from the enacted Code duly legislated. Every word is to be read and interpreted as it exists in the statute with the natural meaning attached to the word. Rather in this Section the language is so simple that there is no scope even to supply 'casus omissus'. I hasten to add that the doctrine of 'Noscitur a Sociis' is somewhat applicable that the associated words take their meaning from one another so that common sense meaning coupled together in their cognate sense be interpreted. As a result, "its" denotes the property owned by the Corporate Debtor. The property not owned by the Corporate Debtor do not fall within the ambits of the Moratorium. Even Section 10 is confined to the Book of the Accounts of the Corporate Debtor, due to the reason that Section 10(3) has specified that the Corporate A....