TaxTMI 
TaxTMI 
TaxTMI 
2017 (10) TMI 515
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....on 02.03.1911 and subsequently constituted as a corresponding new bank on commencement of the Banking Companies Act. The permanent account number of the financial creditor is AAACB1534F and its branch office is at Corporate Financial Services Branch, Ist Floor, Bank of Baroda Building, 16, Parliament Street, New Delhi- 110001. 2. Ms. Archana Mishra has been authorized by the letter dated 03.02.2017 (Exhibit- 1) 3. The Corporate Debtor-Amrapali Silicon City Private Limited was incorporated on 20.02.2010. Its authorised share capital is Rs. 2,00,00,000/- (Rupees Two Crores) and the paid up share capital is Rs. 1,03,69,820/- (Rupees One Crore Three Lakhs Sixty Nine Thousand Eight Hundred and Twenty) as per the master data available on the website of Ministry of Corporate Affairs. It has its registered office also at Delhi. 4. The financial creditor has proposed the name of Mr. Rajesh Samson as an Insolvency Professional. A certificate of registration dated 30.06.2017 issued by the Insolvency and Bankruptcy Board of India has been placed on record (Annexure-B) attached with the application. He has registration No. IBBI/IPA-001/IP-P00240/2017-18/10469. He has also made declaration an....
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.... First charge on a pari-passu basis by way of hypothecation of all the movable assets of the Corporate Debtor including but not limited to the raw materials, work in progress etc., both present and future; (c) First floating charge on a pari-passu basis by way of hypothecation or assignment of all book debts, operating cash flows, receivables, commissions; intangibles and revenues of whatsoever nature and wherever arising, both present and future; (d) First charge on a pari-passu basis on all the bank accounts of the Corporate Debtor including but not limited to the trust and retention account, into which inter alia, all the operating cash flows, treasury income, revenues/receivables of the Corporate Debtor, debt service reserve amount would be deposited; (e) First charge on a pari-passu basis by way of assignment or creation of security interest of all the rights, title, interest, benefits, claims and demand whatsoever of the Corporate Debtor: (i).................. (ii)................. (iii)................ (iv)................. (v)................. (f) first charge on the profits of the Corporate Debtor after provision for taxation. The copies of certificate ....
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....ok in accordance with the Bankers Books Evidence Act, 1891 has also been placed on record which relate to term loan facility (Exhibit - 14). . 12. The 'financial creditor' has then attached a list of other documents to the application to prove the financial debt, the total amount due and the date of default. Those documents are as under:- (a) A copy of Acceleration Notice dated March 6, 2017 by BoB to the 'Corporate Debtor' calling upon the 'Corporate Debtor' to repay the default amount within seven days of the date of the notice and reply of the Corporate Debtor to the Acceleration Notice; (b) A copy of reply by 'Corporate Debtor' dated April 4, 2017 to aforementioned notice; (c) A copy of letter dated May 5, 2017 on behalf of - BoB to 'Corporate Debtor' in response to aforementioned reply; (d) A copy of reporting of the account of the 'Corporate Debtor' as SMA - II account with the Central Repository of Information on Large Credits (CRILC) (e) Copies of the letters dated June 29, 2016, June 25, 2016, June 18, 2016 and e-mail dated June 2, 2016 by BoB to the 'Corporate Debtor' indicating persistent overdues; (f) ....
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....ncy or any composition or arrangement with the creditors. In pursuance thereof, she has signed power of attorney, pleadings and other papers. The application cannot be considered in complete. Therefore, the objection raised would not survive. 15. It has further been argued that the default amount mentioned in part IV column 2 of the application does not match with the amount mentioned in various other documents annexed by the applicant. A reference has been invited to status classification report of the corporate debtor issued by CIBIL dated 28.02.2017, bankers book maintained by the applicant and acceleration notice. Even this objection will not survive because a perusal of the CIBIL report dated 28.02.2017 mention the same figure of default namely Rs. 59,38,00,000/- (Rupees Fifty Nine Crore Thirty Eight Lakhs) and the element of interest amounting to Rs. 11,77,43,681 (Rupees Eleven Crore Seventy Seven Lakhs Forty Three Thousand Six Hundred Eighty One) is not required to be reflected. It clearly mentions the account to be substandard. Likewise, in the Bankers Book (Exhibit-14) same amount has been worked out under the column balance as on 16.08.2016 namely Rs. 59,38,00,000/- (Rup....
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....39;. Therefore, this objection too would not cut any ice. 17. The New Okhla Industrial Development Authority has filed an application for intervention under Rule 32 of the NCLT Rules, and has placed on record a copy of the lease deed executed between the 'Corporate Debtor' and the New Okhla Industrial Development Authority. 18. The question which arises for consideration is whether the petitioner has been able to satisfy the requirement of Section 7 of the Code. According to Explanation appended to Section 7(1) of the Code an application by the 'Financial Creditor' either on its own behalf or jointly with the other financial creditor would be competent for initiating Corporate Insolvency Resolution Process against a 'Corporate Debtor' before this Tribunal when a default has occurred. It is obvious that the lead bank like the petitioner is competent to file this application on its own behalf and other banks who are members of the Consortium. 19. In order to ascertain whether the default has occurred, it will be profitable to read Section 3(12) of the Code which states that default means non-payment of debt when whole or any part of the instalment of the de....
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....ejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority." A conjoint perusal of the aforesaid provision would reveal that form and manner of the application has to be the one prescribed by the authorities. It is required to be accompanied by the prescribed fee. It is further evident that if the application is incomplete as per the requirement of Section 7(2) of the Code then this Tribunal being the Adjudicating Authority may reject it. However, proviso to Section 7(5) of the Code postulates that before rejecting the application on the ground that it is incomplete in terms of Section 7(2) of the Code the Tribunal is obliged to give notice to the applicant to rectify the defect in his application. The defect in the application needs to be removed within seven days from the date of receipt of notice. 22. For the reasons, aforementioned this petition is admitted. Shri Rajesh Samson who is duly registered with Insolvency and Bankruptcy Board of India (IBBI/IPA-001/IP-P00240/2017-18/10469) has been proposed as an Interim Resolution Pr....