TaxTMI 
TaxTMI 
2018 (2) TMI 684
X X X X Extracts X X X X
X X X X Extracts X X X X
....ication number of the financial creditor is BSR Code 283869 and its branch office is at Mid Corporate Finance Branch, GF (Right Wing), Link House, 3, Bahadur Shah Zafar Marg, New Delhi-110002. 2. Mr. Ashwani Kumar Arora has been authorized by the power of attorney dated 08.09.2016 (Annexure-A1) to sign and submit the petition. 3. The Corporate Debtor-NCML Industries Limited was incorporated on 26.09.1996. The identification number of the Corporate Debtor is U65923BL1996PLC082284 and its registered office is situated at 1818, Naya Bazar, New Delhi- 110006. Its authorised share capital is Rs. 23,55,00,000/- (Rupees Twenty three crores fifty five lacs) and the paid up share capital is Rs. 23,54,85,000/- (Rupees Twenty three crores fifty four lacs eighty five thousand) as per details of guarantee clause as well as Memorandum of Association. 4. In the application, the Financial Creditor has given the details of financial debt granted to the 'Corporate Debtor' with the dates of disbursement. A perusal of part IV of the application has highlighted the following particulars of financial debt: "PARTICULARS OF FINANCIAL DEBT 1. TOTAL AMOUNT OF DEBT GRANTED DATE(S) OF DISBUR....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r securities of any kind belonging to or held by the Company, and all those in action which may rise to any debt, revenue or monetary claim which are now due and owing or accruing and which may at any time hereafter during the continuance of this Deed become due and owing or accrue to the Company and the benefits of any security, guarantee or other rights in relation to any of the foregoing; (ii) Stocks of raw materials, consumables, general stores, of whatsoever nature and wherever arising finished and semi-finished goods, goods in process and stores, which are now lying or stored in or which may become consumable hereafter from time to time during the continuance of this Deed by lying or stored in or brought into or be in or about the factories and godowns of the company or warehouses, wherever situated; (iii) Accounts receivable, operating cash flows, treasury income, deposits of the Company with third parties, and any other revenues or whatsoever nature and wherever arising, present and future; LC (Development) facility granted by Central Bank of India First charge shared pari passu amongst the Lenders, (including the Forward contract limit o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....has also been placed on record (Annexure A-5). Further Corporate Debtor has also placed on record omnibus counter guarantee (Annexure A-6) of Manish Jain (HUF) for the letter of credit dated 31.03.2014. 9. As per the financial creditor the estimated value of the aforementioned securities is approximately 1000 crores (Rupees one thousand crores) as on 31.12.2015. 10. The Financial Creditor further asserted that Original Application No. 533 of 2017 has been filed by State Bank of India as Consortium Leader with the Financial Creditor as a joint plaintiff which is pending consideration of Debt Recovery Tribunal-I, New Delhi. 11. The Financial Creditor has also attached the financial contracts with respect to the CC (Hypothecation) facility and LC facility. Those documents are as under:- (1) A copy of the Inter se agreement dated 08.02.2013 between the Consortium members including Financial Creditor has been annexed as Annexure A-8. (2) A copy of Joint deed of hypothecation dated 24.04.2014 has been annexed as Annexure A-9. (3) A copy of Composite deed of hypothecation dated 31.03.2014 has been annexed as Annexure A- 10. (4) A copy of agreem....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... incomplete as no statutory details required in part IV of the prescribed form have been given. It is appropriate to mention that the proforma has been prescribed by Rule 4 of the Rules known as Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. In part IV two columns are mentioned namely (1) total amount of debt granted with date(s) of disbursement (2) amount claimed to be in default and the date on which the default occurred. The petitioner has given the particulars of financial debt in part IV satisfying all the aforesaid requirements and the same read as under:- "PARTICULARS OF FINANCIAL DEBT 1. TOTAL AMOUNT OF DEBT GRANTED DATE(S) OF DISBURSEMENT Debt granted on fresh working capital limit (FLC) of Rs. 40 crores on 17.09.2012 and renewed thereafter. Further debt granted upon review cum enhancement proposal whereby FLC limit was increased on 13.11.2013 to Rs. 50 crores and fresh limit as CC (Hypothecation) for a sum of Rs, 7 crores was granted. The dates of disbursement under the aforesaid facilities are annexed herewith as Annexure A-2. 2. AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED (ATTACH T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Civil Appeal No. 8337-8338 of 2017 decided on 31.03.2017 has concluded that Section 238 is a later non-obstante clause of the Parliamentary enactment which would prevail over the limited non-obstante clause. The Banking Regulation Act to which reference has been made is also much earlier to the enactment of the Code and the non-obstante clause which is in the widest terms possible under Section 238 of the Code must prevail. Hon'ble the Supreme Court also dealt with a cognate argument that under the Maharashtra Relief Undertakings (Special Provisions Act), 1958 even if there was a promise to infuse funds into the Corporate debtor then it would not make any difference if no fund were actually infused. The observations made in para 59 of the judgment are direct answer to the argument raised on behalf of the Corporate Debtor. Para 59 of the aforesaid judgment read as under:- "59. The obligation of the corporate debtor was, therefore, unconditional and did not depend upon infusing of funds by the creditors into the appellant company. Also, the argument taken for the first time before us that no debt was in fact due under the MRA as it has not fallen due (owing to the default of....