TaxTMI 
TaxTMI 
2017 (11) TMI 164
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....djudicating Authority) Rules, 2016 (for brevity 'the Rules') with a prayer for initiation of Corporate Insolvency resolution process in respect of Respondent corporate debtor. 2. The applicant Punjab National Bank is a bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970, having its head office at 7, Bhikaji Cama Place, New Delhi and inter alia a branch office at Large Corporate Branch, Tolstoy Marg, New Delhi-110001. 3. The respondent M/s Carnation Auto India Pvt. Ltd. is a company registered under Companies Act 1956 having its registered office at 11/3, 2nd Floor, Park Road Diamond 5, East Patel Nagar, Near Corporation Bank ATM, New Delhi-110008 and was incorporated on 03.01.2008. 4. It....
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....ets Agreement dated 21.11.2009 (Annex I-I) c. Hypothecation of Movable Assets forming part of fixed/block assets Agreement dated 21.11.2009 (Annex I-I) d. Deed of Hypothecation to secure LC on DA/DP Basis dated 21.11.2009 (Annex I-K) e. Counter Indemnity dated 21.11.2009 (Annex I-L) f. Undertakings dated 21.11.2009 (Annex I-M) 6. In addition, the credit facility was secured by continuing guarantee dated 24.04.2010 of M/s Carnation Reality Pvt. Ltd. who also created mortgage by deposit of title deeds on 24.04.2010 in respect of the properties reflected at para 9 of the application. In respect of the security documents executed by the company, charge was registered with ROC under the provisions of the Co....
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....) Rs. 17.75 Crores Rs. 18,45,06,911.00 2. Term Loan (IC3347) Rs. 88.00 Crores Rs. 92,19,08,204.00 Total Rs. l 10,64,15,115.00 10. It is pertinent to state here that the Applicant Bank has taken action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) by issuing notice dated 01.10.2015 under Section 13(2) of the Act. The Applicant Bank has also filed Original Application for Recovery of Rs. 113,58,68,533/- along with pendentelite and future interest against Corporate Debtor, before Debts Recovery Tribunal New Delhi, which is pending for adjudication. 11. The respondent corporate debtor has filed their reply on 30.08.2017 ....
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.... 13. From a perusal of the aforesaid letter it has been clear that the representative of Applicant Bank was specifically authorized to file this application under the Code before the Tribunal. Needless to say that it is for the financial creditor either to initiate insolvency resolution process or not. Therefore the aforesaid objection raised by the respondent corporate debtor cannot sustain. 14. It is also the case of the respondent that the debt claimed by the Applicant Bank is not due and payable as on date and no default in terms of Section 3(12) of the Code exists in the present case. It is submitted that the amount claimed by the Applicant Bank in the instant case is a disputed amount and a counter-claim has been filed by the resp....
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.... debt is disputed so long as the debt is due and payable. The pendency of SARFAESI proceedings and proceedings before DRT will not preclude the applicant bank to trigger corporate insolvency resolution process under Section 7 of the Code. The initiation of proceedings under the SARFAESI and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, is no bar for initiation of insolvency proceedings under the Code, in view of the overriding effect given in the provisions of Section 238 of the Code. In the facts once the default is more than one lac, the objection of the Respondent that the amount due has not been adjudicated upon cannot stand. 17. The Respondent has further alleged that the amount of claim made before DRT an....
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....d a default in repayment of the outstanding amount. Moreover, the application of the financial creditor is complete and there is no disciplinary proceeding pending against the proposed IRP. We are satisfied that the present application is complete and the applicant financial creditor is entitled to claim its outstanding financial debt due to the corporate debtor and that there has been a default in payment of the financial debt. 21. Therefore, in terms of Section 7(5)(a) of the Code, the present application is admitted. 22. A moratorium in terms of section 14 of the Code is being issued prohibiting the following: * Institution of suits or continuation of pending suits or proceedings against the corporate debtor including exec....