TaxTMI 
TaxTMI 
TaxTMI 
2017 (4) TMI 1267
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....fice ARMB. Sector 17, Chandigarh, who is authorised to file this application Vide power of attorney dated 15.02 1995, copy of which is at Annexure I. The competent authority has also permitted the filing of the application vide letter dated 30.03-2017 Annexure 2. 2. The application has been filed in Form No. 1 of the Rules as required by Rule 4(1) of the Rules. The instant application has been filed exactly in terms of format in Form No. 1. which is in five parts providing the necessary information. Under sub-rule (3) of rule 4 of the Rules, the petitioner is required to despatch copy of Application filed to Adjudicating Authority through the registered post or speed post to the registered office of the Corporate Debtor. The petitioner attached the postal receipt dated 05.04.2017 of despatch of the application. 3. The matter was listed for the first time before us on 07 04.2017 and on the said date, appearance was made by Mr Anand Chhibbar. learned Senior Advocate with Mr. Gaurav Mankotia. Advocate for the Corporate Debtor'. On 07.04.2017 the petitioner/Financial Creditor was directed to file an affidavit of despatch of the notice to the registered office of 'Corporate Debtor....
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....and that he is not a related party to the parties to this petition. He is neither employee nor promoter or partner etc. of the respondent company or connected with the petitioner Bank, He undertook to abide by the Code of Conduct set out by the Board under the Regulations. 7. We have heard learned counsel for the applicant-petitioner and the learned senior counsel for the 'Corporate Debtor' and perused the record with their able assistance. 8. The crucial issue before the Adjudicating Authority would be to ascertain the existence of default from the records of an information utility or on the basis of other evidence furnished by the financial creditor as per sub- section (3) of Section 7 of the Code. The other contentions raised by the learned counsel for the patties would be discussed in the later part of this order 9. As per sub-section (3) of Section 7 of the 'Code', the 'financial Creditor' has to furnish along with the application- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an Interim resolution profes....
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....ular portion of the initial loan was transferred to FITL Account. The sanction order dated 29.11.2012 is Annexure P-13. As per this letter, the fresh loan consisted of term loan of Rs. 27.29 crores, additional term loan of Rs. 3.40 crores and funded interest term loan (FITL) of Rs. 3.38 crores were sanctioned. Alongwith this sanction letter, the terms and conditions are annexed. 14. Learned counsel for the petitioner referred to the repayment schedule in respect of term loan of Rs. 3.40 crores as fixed in the sanction letter to be 48 monthly instalments of 1 Iac each commencing w.e.f. April, 2015, 36 monthly Instalment of Rs. 6 lacs each w.e.f. April, 2019 and 8 monthly instalment of Rs. 10 lac each with effect from April, 2022. The other condition was that the interest during the implementation period and thereafter to be serviced/recovered as and when levied was also to be paid. Similarly, the Instalments were also fixed in respect of the repayment of the FITL and the rescheduled term loan of Rs. 27.29 crores With the clause of interest to be deposited as and when levied. The supplementary agreement dated 30.11.2012 on the basis of the aforesaid sanction in respect of Rs. 27.29 ....
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....Interim resolution professional or the resolution professional, as the case may be, may call for such other evidence or clarification as he deems fit from a creditor for substantiating the whole or part of its claim Under Regulation 11. the creditor has to bear the cost of proving the debt due to such creditor. 17 It would also be relevant to refer to regulation 14 of the Regulations, which reads as under "14. (1) Where the amount claimed by a creditor is not precise due to any contingency or other reason the interim resolution professional or the resolution professional as the case may be, shall make the best estimate of the amount of the claim based on the Information available With them. (2) The Interim resolution professional or the resolution professional as the case may be, shall revise the amounts of claims admitted including the estimates of claims made under sub-regulation (1), as soon as may be practicable, when he comes across additional information warranting such revision So, the above provisions would take care of contentions raised With vehemence by the learned senior counsel for respondent, 18. The primary documents for determining the default would be the co....
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....;corporate debtor' can be taken care of by the IRP Who has to take charge of the company as a going concern. He may even make efforts to settle the debts with the applicant. 22. The learned senior counsel for the Corporate Debtor however laid emphasis on the language of sub-section 5 of Section 5 of the Code and vehemently contended that the Adjudicating Authority is to first satisfy itself that the application is complete and to then determine that the Corporate Debtor has committed default. Learned counsel submits that the application cannot be considered as complete as the Information in respect of various litigations has not been provided. The other contention is that even no notice of this petition to the other financial creditors to whom the corporate debtor owes about 60% of total loan, namely the SBI now ARCIL as well as United Bank of India. The learned senior counsel further submitted that there are about 38,80,05,000 shareholders of the company and shareholding of the public is to the extent of about 47.62%. It is vehemently contended that in case the application is admitted, the Interest of large number of people who are not aware of these proceedings would be jeop....
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....by publication or impleading the other financial creditors as parties is neither required under the provisions of the Code nor under the Rules framed thereunder. 25. The learned counsel for applicant-Bank seems to be quite correct in contending that the consent of 60% of the creditors as required by Section 9 of SARFAESI Act, 2002 cannot be applied to the proceedings under the Code, It is apparent from the amendment made In Section 13 (9) of SARFAESI Act, 2002 by virtue of Section 251 of the Code and its schedule VI. Now the requirement of the consent under Section 13 (9) of SARFAESI Act, has been made subject to the provisions of Insolvency and Bankruptcy Code, 2016 and the 'Code' enables the creditor either by itself or jointly to trigger the insolvency resolution process. 26. With regard to the contention raised by the learned senior counsel for the corporate debtor, as to how to protect the interest of other financial creditors i.e.- ARCIL and United Bank of India, We find that it is for the IRP to take care of these questions on account of multifarious duties assigned to him under the Code itself. The IRP is to constitute a committee of the creditors which has to com....
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....6 H.S. Arora Vs. BOD, PNB 20.03.2017 Pending CASES PENDING IN DEBT RECOVERY APPELLATE TRIBUNAL MIS, Appeal 379- 2016 PNB Vs. James Hotels & Ors. 20.03.2017 pending CASES PENDING BEFORE DRT, CHANDIGARH SARR/2028/2016 Now SA/225/2016 James Hotel Vs SBI & ors. 26.04.2017 pending SARR/1976/2016 A.S. Bhullar vs SBI & Ors. 27.10.2016 pending OA/1270/2016 PNB Vs. James Hotels 17.05.2017 pending OA/215/2016 ARCIL Vs. James Hotels 31.05.2017 pending OA/1110/2016 SBI Vs. James Hotels 31.05.2017 pending It is also informed In the synopsis that besides the above information, the other litigation between the company and other co-shareholders is also pending. These cases include Civil Writ petitions filed in the High Court at the instance of the corporate debtor and its directors/promoters, apart from the litigation filed at the instance of ARCIL and also the petitioner/financial creditor. The learned senior counsel for corporate debtor vehemently contended that copies of those cases have not been filed to know the nature of controversy involved in different forums. It was further submit....
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....t. 1993 can still take recourse to the Securitisation and Reconstruction of Assets and Enforcement of Security Interest Act (NPA Act for short) It was held by the Hon'ble Supreme Court that NPA Act was an additional remedy under the DRT Act. Together they constitute one remedy and therefore the doctrine of election does not apply Even according to SNELL's Equity (31st Edition page 119) the doctrine of remedies is available only when there are two or more co-existent remedies available to the litigants at the time of election which are repugnant end inconsistent. It was further held that there is no repugnancy or inconsistency between the two remedies and therefore the doctrine of election has no application. In the Instant case rather the provisions of the 'Code' have overriding effect and takes care of the suits or proceedings against the Corporate Debtor already pending. 32. There is a clear difference in the intention of the legislature. in cases of application filed by 'Operational Creditors and 'Financial Creditors. An application for Corporate Insolvency Resolution Process by Operational Creditor can be filed under section 9 of the 'Code' One of t....
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.... the issues in question. If the corporate debtor or the directors etc have filed any suit or proceedings. It may be contended that those proceedings are not against the corporate debtor for applicability of Section 14 of the Code, but such a proposition may not arise at this stage. 35. The petitioner Bank had already issued a notice dated 20 08.2015 {Annexure R-I) attached with the objections, for initiating the proceedings for declaring the corporate debtor as wilful defaulter. For that matter the applicant Bank has already filed OA before the DRT. Learned senior counsel for the corporate debtor contended that the present petition to declare the respondent/corporate debtor as insolvent would be setting up an inconsistent case. We have already discussed above that the provisions of the Code have overriding effect over other taws and being the latest law on the subject, the proceedings before the DRT will not debar the right of the financial creditor to file application under Section 7 of the Code. 36. The next contention was that by taking over of custody of the premises of the corporate debtor, it will seriously prejudice the respondent/corporate debtor in pursuing the criminal ....