AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 205
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt Street, New Delhi and acting through its Branch Office at Stressed Assets Management Branch-II, Karol Bagh, Delhi. 2. Mr. Abhishek Kumar, AGM/Relationship Manager of the Financial Creditor-Bank has been empowered to sign and submit the petition by the authorization dated 16-06-2017 issued by the Chairman of State Bank of India in accordance with Section 27 of the State Bank of India General Regulations, 1955 read with the Gazette notification dated 27.03.1987 issued by the State Bank of India Central Office. 3. The Corporate Debtor-Asian Colour Coated Ispat Limited is a company registered under the provisions of the Companies Act, 1956 and was incorporated on 02.02.2005. The identification number of the Corporate Debtor is U27105DL2005PLC132593 and its registered office is situated at 204, Nirmal Tower, 26, Barakhamba Road, Connaught Place, New Delhi - 110001. Its authorized share capital is Rs. 12500000000/- and the paid up share capital is Rs. 8807762700 which is based on the details given in master data obtained from the official website of Registrar of Companies. 4. Initially the Financial Creditor had proposed the name of Mr. Savan Godiawala to act as Interim Resolution ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m is INR 30.00 Crores forming 21.06% of the term loan facility. 6. In column 2 of part IV the amount claimed to be in default and the date on which the default occurred, have been stated. According to the averments made by the Financial Creditor-State Bank of India the aforesaid facilities availed by the Corporate Debtor are overdue and total amount in default with regard to State Bank of India (group) as on 30.11.2017 is Rs. 1283.46 Crores (Rupees One Thousand Two Hundred and eighty three crores and forty six lacs). 7. As per the averments of the 'Financial Creditor', the account of the Corporate Debtor was declared as Non-Performing Asset (NPA) on 04.06.2016 in its books (slipped to 31.03.2016 during the statutory audit through MOC, due to failure of 5/25 refinance scheme). 8. The 'financial creditor' has placed on record an overwhelming evidence to prove the default. Entries in Bankers Book in accordance with the Bankers Books Evidence Act, 1891 have been placed on record which relate to the aforesaid accounts of the Corporate Debtor in which financial debt were transferred by the Financial Creditor certifying the statement of accounts of the Corporate Debtor comprising of pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pulates that plaints, written statements, petitions and applications may be signed and verified, affidavits may be sworn or affirmed, bonds may be signed, sealed and delivered, and generally all other documents connected with legal proceedings may be made and completed on behalf of the State Bank of India by the Chairman or by any officer or employee empowered by or under Regulation 76 to sign documents for and on behalf of the State Bank. According to Regulation 76 the managing directors (deputy managing director), the chief general manager and such other officers and employees of the State Bank as may be authorized in this behalf by the Central Board or the Executive Committee have been authorized to sign all documents, instruments, accounts, receipts etc. It is pertinent to notice that a notification dated 27.03.1987 was issued (at page 1917) authorising all officers in the Grade of Senior Management Grade Scale-IV (SMGS-IV) and above to exercise the signing power to sign all documents, instruments, accounts, receipts, letter and advices etc. connected with the current or authorized business of the Bank in respect of all matters coming in discharge of functions of the posts held....
X X X X Extracts X X X X
X X X X Extracts X X X X
....horisation from other consortium members would not be necessary. Therefore, the objection raised is rejected. In order to ascertain whether the default has occurred, it will be profitable to read Section 3(12) of the Code which states that default means non-payment of debt when whole or any part of the instalment of the debt has become due & payable and the same has not been repaid by the 'Corporate Debtor'. In the present case, it has come on record predominantly that the 'default' has occurred many a times. 12. Another objection is with regard to authorization of Mr. Abhishek Kumar alleging that the officer did not have authority to initiate and file the application on behalf of the Financial Creditor. This objection would not survive in the light of detailed discussion in para 10 (supra). Therefore, the objection is not sustainable and is hereby rejected at the outset. 13. Likewise, reference has also been made to the Joint Lender meetings but no substantial resolution could be achieved till date. The objection raised by the 'Corporate Debtor' has been noticed to highlight their wishful thinking. There is no provision in the Code to take into consideration any talks between t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o act as Interim Resolution Professional. In view of the replacement of the Interim Resolution Professional the argument advanced by Mr. Tripathi, learned Senior counsel would also not require any further consideration and we accept the appointment of Mr. Kuldeep Kumar Bassi to act as Interim Resolution Professional. 15. Another objection raised by learned counsel is that the Corporate Debtor is sanguine to the interests of its stakeholders and has taken steps towards stabilising its financial position inter alia by initiating negotiation with a possible strategic investor, therefore, the admission of the petition would undermine the same. The aforesaid argument also does not need to detain us because the letter referred merely expresses an intention of the 'strategic investor' to consider investing in the Corporate Debtor and the said intention is based on so many ifs and buts. A due diligence is proposed to be conducted in respect of the strategic investor and till date there is no concreate proposal in place. However, if the Corporate Debtor is confident about the investment from the strategic investor, the same could be examined as well by the Committee of Creditors of the C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y Hon'ble High Court in the case of Face Book India Online Services (P.) Ltd. v. Vinay Rai (Cr. Mis. No. 102 of 2012 decided on 11.01.2012) and has argued that a document in electronic form has to be proved either by means of certificate issued by the person/authority in whose custody the device is kept in which the document was stored in an electronic form stating that the print out generated from the device and reflects an information stored in electronic form in the ordinary course. Learned counsel has also placed reliance on another judgment rendered by Mumbai Bench, NCLT in the case of Ajitnath Steels (P.) Ltd. v. Ellora Paper Mills Limited (CP No. 716/I&BP/2017 decided on 19.07.2017). Placing reliance on para 9, learned counsel has argued that although the certificate under the Bankers' Books of Evidence Act is not mandatory if the other evidence is available yet such a certificate becomes significant if it is the only evidence. 18. Mr. Virender Ganda, learned senior counsel for the corporate debtor has also supported the submission made by Mr. Tripathi. He has additionally argued that the statement of account attached with the paper book are incomplete and no date of disbur....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... On behalf of the applicant, Mr. Ankur Mittal has argued that the argument of Mr. Ganda stems from complete misconception. According to the learned counsel there is no mismatch of any figure and the date of NPA is 04.06.2016. The interest has been charged up to 30.05.2016. Learned counsel further pointed out that the date of disbursement has also been shown as is evident from the perusal of various entries shown in the numerous table reproduce in para 9 of the reply to the additional affidavit filed by the Financial Creditor dated 26.04.2018. Learned counsel has read out para 9 of the aforesaid reply in support of his submission. Mr. Mittal then made a reference to para 9 of the rejoinder filed on 03.05.2018 (Diary No. 2579) and has argued that the purpose of column 1 in part IV of Form 1 is to indicate that the loan amount stands disbursed. It has been submitted that since the sufficient information has been supplied by supplementary affidavit, it cannot be regarded as incomplete application as the Code itself gives liberty to cure the defects. The financial creditor has provided first statement of account which clearly shows that disbursement was made in the year 2006-2007. 21.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Creditor in its computers in the due course of its business and that the computers were still in possession of the Financial Creditor. He further deposed that statement of accounts filed along with the application (volume 4 at pgs. 764-798) as well all the reply to the additional affidavit are true and correct copies of the bank records maintained by the Financial Creditor in its computers and that the accounts are being duly maintained by the Financial Creditor in its computers in the software namely 'Core Banking Solution'. Likewise, following statements have been made in para 5 to 10 which read as under :- "5. I say that the print out of statement of accounts of all fourteen accounts (14 accounts) filed along with as annexure -1 has been taken out by the branch at SAMB-II, Karol Bagh, Delhi from the statement of accounts duly maintained under the Core Banking Solution (CBS). I say that the Core Banking Solution (CBS) is networking of branches, which enables Customers to operate their accounts, and avail banking services from any branch of the Bank on CBS network, regardless of where it maintains the account. I further say that the data under CBS is maintained at a centralised....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vate Limited has filed an application being C.A. No. 159(PB)/2018 dated 26.02.2018 for intervention under Order 1 Rule 10 (2), Section 151 Code of Civil Procedure read with Rule 11 of the NCLT Rules, 2016. In the application it is submitted by the applicant-Power2SME Private Limited that it is engaged inter alia, in business of procuring and selling of raw material, operational supplies, industrial etc and providing the same to its customers against cash payment or on credit basis. It is further averred that the Corporate Debtor is also one of its customer against whom supply of raw material was made on credit basis. In this regard agreement dated 28.09.2017 and addendum dated 25.10.2017 & 17.01.2018 were executed between the applicant and the Corporate Debtor. 26. It is further averred that the Corporate Debtor vide its letter dated 01.11.2017, 01.12.2017 & 01.01.2018 admitted and confirmed that whatever material/stock are lying in the factory premises situated at 7-12, Sector-6, HSIIDC, Bawal, District Rewari, Haryana-123501, its godowns and goods in transit of about 9000 tons amounting to Rs. 40 crores which was used at the said premises for the purpose of job work belongs to t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th the company for a long time and some have been attached since inception of business of the Corporate Debtor. The work undertaken by the company of manufacturing CR steel coils requires a significant expertise and skill and the workers are skilled and are the heart and soul of the company; and due to the efforts of these workers, the company is running at a capacity of 70% presently. 30. In the said application it is further averred that Insolvency Resolution Professional do not possess the required skills and expertise to run a company of the size of the Corporate Debtor or a plant of a nature, capacity and intricacies of the Bawal plant. Insolvency Resolution Professionals carry fiduciary duties and are obligated to take into consideration the interests of all stakeholders. It is pleaded that even if this Tribunal admits the petition of the Financial Creditor, the interests of the employees should be fully safeguarded during the insolvency resolution process. In essence applicant craves liberty that it be permitted to submit resolution plan with respect to the Corporate Debtor. Further prayer has been made that a direction be issued to the effect that during the Corporate Inso....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on, this petition is admitted and Mr. Kuldeep Kumar Bassi, 410, Level IV, Centrum Plaza, Golf Course Road, Sector 53, Gurgaon, Haryana-122011, Mobile No. 9417027233, e mail id [email protected], Registration No. IBBI/1PA-001/IP-P00280/2017-2018/10524 is appointed as an Interim Resolution Professional. 35. In pursuance of Section 13(2) of the Code, we direct that Interim Insolvency Resolution Professional shall immediately make public announcement with regard to admission of this application under Section 7 of the Code. The expression 'immediately' means within three days as clarified by Explanation to Regulation 6 (1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 36. We also declare moratorium in terms of Section 14 of the Code. A necessary consequence of the moratorium flows from the provisions of Section 14(1)(a), (b), (c) & (d) and thus the following prohibitions are imposed which must be followed by all and sundry: "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other author....