TaxTMI 
TaxTMI 
2018 (9) TMI 205
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....0021, India, Local Head Office at Parliament 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 M....
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....n sanctioned lastly by a consortium of lenders. The share of State Bank of India (group) in the consortium 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 tran....
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....n connection with any proceedings before the Tribunal for or against the Bank under IBC. A reference has then been made to Regulation 76 & 77 of the State Bank of India (General Regulations, 1955). Regulation 77 deals with signing of pleadings. It clearly stipulates 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)....
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....n on its own behalf and also on behalf of other banks who are members of the Consortium. In any case the controversy raised would pale into insignificance once it is remembered that once the petition is competent on behalf of the Financial Creditor alone then authorisation 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 ....
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....y) Rules, 2016. He has declared that no disciplinary proceedings are pending against him in Insolvency and Bankruptcy Board of India or elsewhere. The certificate issued by the Insolvency and Bankruptcy Board of India also shows that he is duly registered and is eligible to 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 propose....
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....(5) of Section 7 postulates that the adjudicating authority-NCLT is to grant opportunity to rectify the defect within seven days and that opportunity has already been granted. 17. In support of his submission, Mr. Tripathi has placed reliance on para 17 of the judgment rendered by 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 signific....
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....ara 8 of the judgment rendered by Hon'ble Supreme Court in the case of Innoventive Industries Ltd. v. ICICI Bank and Ors. (2018) 1 SCC 407, learned counsel has submitted that the application is incomplete and the same is liable to be rejected by giving the liberty to the petitioner. 20. 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 informat....
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....y No. 2421) substantially comply with the provisions of Section 2 and Section 2(A) of the Bankers Books Evidence Act. In para 3 of the affidavit Mr. Abhishek Kumar, Assistant General Manager has stated in categorical terms that 14 accounts of the Corporate Debtor are maintained by the Financial 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 sa....
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....s made in the rejoinder be permitted. Along with the additional affidavit Board Resolution dated 06.04.2018, a copy of demand notice dated 26.03.2018 issued by the Financial Creditor upon the Corporate Debtor and copy of minutes of meetings dated 20.02.2018 have also been placed on record (Annexure AA-1, AA-2 & AA-3). 25. The Power 2SME Private 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.....
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....ve been filed by one Mr. Kuldeep Singh, Authorized Representative of the Employees Union of the Corporate Debtor. The assertion of the applicant is that it represents 329 workers /employees deployed in the Corporate Debtor-respondent Company and they are totally dependent on the company for their livelihood. Most of the employees have been attached with 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 pet....
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....r Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of IBC. We are satisfied that a default has occurred and the application under sub-section (2) of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the application warrant admission. 34. As a sequel to the above discussion, 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....
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....n committed by the ex-management or any tainted/ illegal transaction by ex-directors or anyone else the Interim Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional shall be under a duty to protect and preserve the value of the property of the 'Corporate Debtor' as a part of its obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code. 39. The application filed by the Corporate Debtor being C.A. No. 309(PB)/2018 is again an attempt to delay the proceeding by seeking to file additional affidavit as a counter to the rejoinder. Such a procedure would be necessary only if the material facts were not otherwise on record. Likewise, C.A. No. 159(PB)/2018 for intervention by Power2SME Private Limited would not require any detailed consideration because any such claim could be made before the Interim Resolution Professional/ Resolution Professional. The application filed by Andhra Bank (C.A. No. 389(PB)/2018) can also be duly considered by the Interim Resolution Professional/Resolution Professi....