TaxTMI 
TaxTMI 
2018 (9) TMI 1394
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....ffice at 4, Bhanot Apartment, LSC, Pushp Vihar, New Delhi - 110062. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. It is appropriate to mention that the applicant is a company incorporated on 27.09.2004 under the provisions of Companies Act, 1956 and a banking company within the meaning of Section 5(c) of the Banking Regulation Act, 1949. The Head Office of the applicant company is at IDBI Tower, World Trade Complex, Cuffe Parade, Colaba, Mumbai-400005 and one of the branches, amongst others, at Videocon Tower, 1st floor, Jhandewalan Extension, New-Delhi-110055. 4. Smt. Shivani Singla, General Manager of the applicant has relied upon the authority letter dated 30.01.2018 of the applicant bank wherein she was authorised to submit application for and on behalf of IDBI Bank Limited to initiate corporate insolvency resolution process against ACIL Limited in terms of the provisions....
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.....73 NPA Date: March 15, 2016 7. It is the case of the applicant that pursuant to the request of the Respondent, the applicant sanctioned Term Loan of of Rs. 254 crore on 27.03.2012. A copy of Sanction Letter dated 27.03.2012 has been placed on record. Pursuant to the sanction the applicant and the Respondent executed Loan Agreement dated 29.03.2012 whereby the Petitioner agreed to lend an amount of Rs. 254 crores to the Respondent in terms of the Sanction Letter dated 27.03.2012 issued by the Petitioner. As per the Loan Agreement dated 29.03.2012, the Respondent agreed to pay interest at the rate stipulated on the principal amount of the loan outstanding from time to time from the date of disbursement of the loan. The Respondent company drew and utilized the entire amount of Rs. 254 crores from the Loan Term Account number 0127673200000921. 8. Despite availing the loan facilities under the Multiple Banking Arrangement and working Capital Consortium the respondent was still facing liquidity constraints and was unable to fulfil its commitment towards repayment of loans to the petitioner. Thereafter a Joint Lenders Forum ("JLF Lenders") was constituted with the Petitioner designate....
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....ed in the application that the Petitioner has granted a total loan of Rs. 371 crores in terms of the Agreement dated 27.03.2012 and 25.07.2016, out of which an amount of Rs. 359 crores were availed by the Respondent and the unavailed portion of Rs. 12 crores were cancelled by the Petitioner on 22.12.2017 in view of the failure of the Respondent in adhering to the schedule of repayment. 14. It is the case of petitioner that the Respondent company has failed to repay the outstanding amount due to the Petitioner as per the Agreement dated 27.03.2012 and 25.07.2016 and has further failed to respond to the recall notice dated 11.01.2018 issued by the Petitioner. 15. The petitioner has placed on record the following details of securities executed in support of the debts sanctioned to the respondent company : a. Deed of Hypothecation dated 29.03.2012 issued by the Respondent company formerly known as Amtek Crankshafts (India) Limited. b. Letter of Comfort issued by Amtek Auto Limited dated 28.03.2012. c. Promissory Note dated 22.03.2016 executed by ACIL Limited in terms of repayment of Term Loan of Rs. 117 crores. d. Undertaking to create mortgage/charge dated 29.03.2012 execute....
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.... on 31.03.2017 has been placed on record. 17. The applicant bank has also filed the relevant statement of accounts duly certified in accordance with Banker Books Evidence Act, 1891 as per requirement of Form 1 Part V column 7 of the application. The detailed outflow and disbursements made from the accounts pertaining to respective loan facilities are reflected in the relevant bank statements. Certified copy of statement of account kept during the course of banking business basing on which the claim has been raised can be termed as sufficient evidence of financial debt. 18. It is seen from the statement of account and loan documents that the loan was sanctioned, loan agreements were executed, charge and securities were created to secure the loan. Besides respondent corporate debtor has signed Demand Promissory Notes and created charge and equitable mortgage in order to secure the debt. Respondent company utilised and enjoyed the loan facility and due to non-payment and non-refund of the outstanding dues, the account of the corporate debtor was declared NPA on 15.03.2016. The applicant bank has also placed CRILC report to show classification of loan accounts of respondent as DA1. ....
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....a corporate debtor when a default has occurred. Therefore, there is no obligation on the part of applicant to join the consortium of Banks. Inter se agreement between the financial creditors cannot override the express provisions of the Code nor can take away the right of any creditor to file application under Section 7 of the Code. Accordingly applicant bank individually has a clear right to file application under the Code in order to recover its dues. Besides in view of the overriding effect given to the provisions of Section 238 of the Code, anything inconsistent therewith contained in any instrument cannot take away the right of the applicant as financial creditor to file application under Section 7 of the Code. 22. The respondent has also raised an objection that the Form-2 annexed with the application in reference to the proposed Interim Resolution Professional is incomplete and not as per law. In this regard it is seen that the applicant was directed vide order dated 04.06.2018 to rectify the petition and to propose a new name for appointment as an IRP. Thereafter, the applicant vide affidavit dated 12.07.2018 has proposed the name of Mr. Ravindra Loonkar, having registrati....
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....The expressions "Financial Creditor" and "Financial debt" have been defined in Section 5(7) and 5(8) of the Code. Precisely "Financial debt" is a debt along with interest, if any, which is disbursed against the consideration for time value of money. In the present case applicant bank had sanctioned and disbursed loan amounts recoverable with applicable interest by entering in to loan agreements with the corporate debtor in respect of each facility. The corporate debtor had borrowed the credit facilities against payment of interest as agreed between the parties. The loan was disbursed against the consideration of time value of money with a clear commercial effect of borrowing. Needless to say, that the debt/claim in question includes both the component of outstanding Principal and interest. In that view of the matter not only the present claim will come within the purview of 'Financial Debt' but also the applicant bank can clearly be termed as 'Financial Creditor' so as to prefer the present application under Section 7 of the Code. 28. Under sub-section 5(a) of Section 7 of the code, the application filed by the applicant financial creditor has to be admitted on satisfaction that: ....
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....ompany utilised and enjoyed the loan facility and due to non-payment and non-refund of the outstanding dues, the account of the corporate debtor was declared NPA. The applicant bank has also placed CRILC report in order to show that accounts of corporate debtor was reported as loss and doubtful account. 34. It is thus seen that the applicant 'financial creditor' has placed on record voluminous and overwhelming evidence in support of the claim as well as to prove the default. Moreover, the application of the financial creditor is complete and there is no disciplinary proceeding pending against the proposed IRP. We are satisfied that the present application is complete and the applicant financial creditor is entitled to claim its outstanding financial debt from the corporate debtor and that there has been a default in payment of the financial debt. 35. As a sequel to the above discussion and in terms of Section 7(5)(a) of the Code, the present application is admitted. 36. Mr. Ravindra Loonkar, having registration number IBBI/IPA- 002/IP - N00433/2017-2018/11206, having office at RBSA Restructuring Advisors LLP, 9C, 9th floor, Hansalaya Building, 15, Barakhamba Road, Connaught Plac....