TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 1188
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.... sanction letter dated 30.6.2010 from the applicant Bank by agreeing that Varun Shipping would repay the loan in 16 quarterly instalments of ` 3,12,50,000 commencing after a moratorium period of 12 months. Apart from the document executed for sanctioning of this loan, Varun Shipping had also executed a statutory mortgage of their vessel "Maharishi Mahatreya" creating a second charge on the said vessel in favour of the applicant bank. And then Varun Shipping acknowledged its indebtedness as on 26.6.2013 to be of ` 28,99,63,706 towards the term loan of ` 50 croreS/now it has become ` 31,28,56,661. Soon after Scheme of Arrangement of Amalgamation was approved by Hon'ble Bombay High Court vide order dated 19.3.2015, Varun Resources Ltd. i.e., debtor company took over the shipping business of Varun Shipping as a resultant company and the former became the demerged company of such amalgamation with effect from the date of appointment, by which, all the assets and liabilities of Varun Shipping Company Ltd., including this liability, stood transferred to the Debtor Company. Since the company started defaulting making repayment, this account was classified in the Books of the Financial ....
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...., 2016, the Debtor Company has stopped operating TRA Account and routing their transactions through another account. 6. Looking at all those allegations against the debtor company by the Financial Creditor, the Corporate Debtor raised the following objections against prayer for admission of this Petition, which are as follows: 1. The Corporate Debtor submits that a large number of shipping companies in India have been critically affected, in the case of the Corporate Debtor, Financial Institutions comprising vast majority of the total lending to the Corporate Debtor expressed their faith in the current management, the total exposure of the lenders supporting the Corporate Debtor is ` 2300 crores, the Creditors have formed the Joint Lender Forum and have approved the Corrective Action Plan (CAP) by signing the Masters' Restructuring Agreement (MRA) dated 31.3.2015. Pursuant to this, the Creditors have already infused an additional sum of ` 425 crores into the company, simultaneously the promoters also pumped in additional ` 75 crores as well. This is evident that CAP is progressing, because a sum of approximately ` 441 crores has already been repaid to the lenders under the CA....
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....ble to be dismissed. Since it has been mentioned in RBI Circular dated 24.9.2015 that the dissenting lenders who do not want to participate in Corrective Action loan for revival of the company, such Bank has an option to exit by selling its exposure to a new or existing lenders within the prescribed timeline for implementation of the agreed CAP, if not such financial creditor is not able to exit by arranging a buyer within the above prescribed time, as per RBI Circular dated 25.2.2016, it has to necessarily adhere to the agreed CAP and provide additional finance if the CAP so envisages for further funding. It has been further reiterated in a case in between IDBI Bank vs. Ruchi Soya Industries Ltd. (2017 SCC On Line Bom 153) holding that the circulars issued by RBI under Section 21 and 35 of Banking Regulation Act are statutory in nature and are required to be complied with by the Banks. To highlight the same point, he also referred Tata Capital Financial Services Supra. 6. The Debtor Counsel further submits if this application is admitted, it would derail CAP and also triggers financially disastrous consequences for the Corporate Debtor because this shipping industry is characteri....
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....tion, it is not mandatory on this Adjudicating Authority to admit the petition just by seeing compliance made by the applicant as stated under sub-section 3 of section 7 of the Code, because the same direction when given in the case of operational creditor, it is made compulsory by using the word "shall" under section of the same Code, therefore when statute itself used different yardsticks in admitting the petitions u/s. 7 and u/s. 9, this Adjudicating Authority should not admit when other surrounding facts outside the scope of sub-section 3 of section 7, are supported by some other directions from other competent authority. Looking at the scope of the objections of the corporate debtor, at least this adjudicating Authority is relieved from deciding as to whether default in repayment is present or not, therefore existence of debt and default is not in dispute. 10. As to the objection raised by the Corporate Debtor staring that the corrective action plan being in force at the initiation by majority of the banks, this Financial Creditor, who has only 1% debt, should not have filed this case to stall the progress of Corrective Action Plan, this Bench has noticed that it is true the ....
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.... of other members cannot be accepted and fit to be rejected." 11. In view of the ratio laid down above, this Bench is of the view that the Adjudicating Authority is not required to look into any other scheme pending including JLF to proceed with Insolvency Proceedings therefore/the contention of the Corporate Debtor that this Financial Creditor has not obtained permission or consent of JLF will not have any bearing in respect to these proceedings therefore, this Bench has not found any force in the argument of the Corporate Debtor Counsel as to pendency of JLF in respect to the other loans taken by this Corporate Debtor. 12. As to other objection raised by the Corporate Debtor saying that the Debtor is only liable to pay ` 3 crores to the first charge holder of this vessel upon which second charge has been made in favour of this Financial Creditor therefore this Financial Creditor is free to proceed against the vessel upon which the charge has been made to realise the loan claim as the vessel value is more than the due outstanding against the company, this argument cannot be taken as a criteria to decide this Petition because the Financial Creditor u/s. 7 is free to proceed again....