TaxTMI 
TaxTMI 
2017 (12) TMI 239
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....ger in whose favour the Bank has given a Power of Attorney dated 27.02.2014 Annexure-1. The Branch Head has Issued authority dated 02.08.2017 Annexure-2 in favour of Mr. Rajesh Sharma, Senior Manager of the Branch Office to file application before NCLT on behalf of the Bank. 3. When the matter was listed on 18.09.2017 the petitioner was directed to file specific authority granted by the competent authority to initiate the proceedings against the Corporate Debtor under the Code. With the compliance affidavit dated 28.09.2017 of Mr. Rajesh Sharma, Senior Manager filed letter dated 06.06.2017 issued by Deputy Circle Head of the Bank Annexure-88 that the Asstt. General Manager of the Branch Office of the Bank at Mohali Phase-1 is permitted to file the application under Section 7 of the Code before National Company Law Tribunal, Chandigarh. The Assistant General Manager, Mohali was also authorised to permit any of its Manager working under the branch to file and submit any other application, affidavit, or to receive notice and to pursue the case etc. on behalf of the Financial Creditor. In the same letter the Deputy Circle Head also authorised appointment of Mr. D.K. Gupta, Advocate, t....
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....s in respect of the creation of the mortgage. 7. It is further stated that the corporate debtor further approached the financial creditor for grant of term loan of Rs. 2 crores and Bank Guarantee of Rs. 1.20 crores to meet the increased cost of projects. This was sanctioned vide letter dt.07.02.2011 (Annexure-36). The company vide resolution dated 31.01.2011 authorised its directors to furnish securities and to sign loan/security documents relating to the additional credit facilities. Copy of the resolution is at Annexure-37. 8. The corporate debtor further executed term loan/hypothecation of assets, hypothecation of current assets (Annexure-38 to 40) to secure term loan of Rs. 2 crores. It also furnished hypothecation of movable assets to secure fresh term loan of Rs. 2 crores and Bank Guarantee of Rs. 1.20 crores (Annexure-41). It also executed General Counter Indemnity (Anenxure-42) to secure Bank Guarantee of Rs. 1.20 crores and agreement of guarantee was jointly executed by Mr. Arun Sharma, Smt. Sunita Sharma and Shri Amitabh Shama to secure fresh term loan of Rs. 2 crores and Bank Guarantee of Rs. 1.20 crores in their personal capacities which are Annexure-43. 9. Agreement....
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....nd total amount in default is stated to be Rs. 20,96,67,934/-. The corporate debtor had also executed balance confirmation letters dated 27.03.2009, 29.11.2012, 07.11.2013, 30.10.2014 and 29.04.2016 confirming the correctness of the outstanding balance in the accounts which are at Annexure-85 (colly). 14. One of the essential requirements of Section 7 (3) of the Code is for the financial creditor to propose the name of Resolution Professional to act as an Interim Resolution Professional. Mr. Rajeev Khurana having Registration No.IBBI/IPA-001/IP-P00126/2017-18/10268 has been proposed as an Interim Resolution Professional who filed written communication in Form No.2 giving all the necessary particulars. When the matter was listed on 18.09.2017, it was contended that Mr. Rajeev Khurana, IRP has since been appointed in two other cases. Mr. Rajeev Khurana, IRP was present in the court and he was directed to file undertaking/declaration as to how he will be able to deal with this matter also along with the other cases. Mr. Rajeev Khurana filed his declaration dated 28.09.2017 that one of the two cases in which he has been appointed as IRP the works/factories are only partially operation....
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....me Tax Rebate u/s 80 IA and have long term high returns potential. 17. This unit is a "Medium (Manufacturing) Enterprise" as defined in the MSMED Act, 2006 and the RBI circular dated 02.07.2012 regarding lending to Micro, Small Enterprises (MSME) sector as the investment in the Plant and Machinery (excluding land and building) is more than Rs. 5 crores but does not exceed Rs. 10 crores. The unit is a valuable national asset, set up in public interest, generating employment, earning revenue for the Government in the form of taxes for social benefits and contributing towards the overall production of the country. 18. It is stated that out of sanction of Rs. 1400 lakhs, the financial creditor has only disbursed an amount of Rs. 800 lakhs and the balance of Rs. 600 lakhs was merely disbursed in the books and misappropriated by the financial creditor to adjust the overdues in the term loan account. This illegal act of the Bank at the time of implementation/commissioning of the Project caused severe shortfall in the means of finance for the smooth implementation of the project thereby, causing delay. The reasons for delay were beyond the control of private promoters due to stoppage of ....
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....ver, the factum of execution of various documents by the corporate debtor and availing various facilities from time to time is not disputed. It is, however, stated that the financial creditor has made several diversions and defaults in compliance of the guidelines issued by RBI which have statutory force and binding on all the Scheduled and Commercial Banks. 22. When the matter was listed on 23.10.2017 learned counsel for respondent submitted that the petitioner-bank may first be directed to file Appraisal Report prepared by the bank at the time of original sanction of the loan. Finding this request to be unsustainable the same was declined. I have heard learned counsel for the parties and carefully perused the records. 23. The main plank of argument of learned counsel for respondent was that there is a violation of RBI guidelines issued under Section 35A of the Banking Regulations Act, 1949 by the petitioner-bank which have binding force. It was also contended that the provisions of the Code, RDB Act, 1993 and SARFAESI Act, 2002 are not applicable to potentially viable sick MSME accounts and it is the statutory duty of the bank-financial creditor to rehabilitate the account in p....
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....ra Act to contend that it was no debt due in law. The Hon'ble Supreme Court held that the adjudicating authority correctly referred to the non-obstante clause contained in Section 238 of the Code and arrived at a conclusion that a notification under the Maharashtra Act would not stand in the way of the corporate insolvency resolution process under the Code. 28. In the present case, on sanction of the loan, the corporate debtor executed various documents i.e. hypothecation of assets, term loan agreement, hypothecation agreement-current assets, power of attorney, agreement of guarantee, agreement of mortgage which are from Annexure-17 to 24. 29. Further, on 01.10.2007 the corporate debtor approached the financial creditor for granting of Bank Guarantee to the tune of Rs. 50 lacs for expansion of business and executed relevant documents, reference to which has already been made while narrating the facts of the case. Further, there are security documents and so many other documents with regard to the loan and execution of FITL facilities whenever the amount of interest becomes due at different times. Copies of various documents to show the term loan facilities, creation of equitable ....
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....arted from June, 2010. Further repayment schedule revised by PNB on 27.11.2012 now the loan is repayable in 33 graded quarterly instalments started from March 2014. Further, the above loan revised by PNB during the year under audit and now the loan is repayable in 33 graded instalments starting from March 2015 to March 2023. TERM LOAN-III (b) (BEAS SHP) Term loan of Rs. 2.00 crores from PNB, Mohali payable in 31 graded quarterly instalments started from September, 2012. Further repayment schedule revised by PNB on 27.11.2012 now the loan is repayable in 33 graded quarterly instalments started from March 2014. Further, the above loan revised by PNB during the year under audit and now loan is repayable in 33 graded instalments starting from March 2015 to March 2023. TERM LOAN-III (C) (BEAS SHP - FITL-I) Term loan of Rs. 1.86 crores from PNB, Mohali as restructured during the year under audit now as per revised sanction letter loan is to be repaid in 11 graded quarterly instalments starting from March 2015 and ending on September 2017. TERM LOAN-IV (C) (BEAS SHP - FITL-II) Fresh Term loan of Rs. 1.71 crores from PNB, Mohali has sanctioned during the year under audit as ....