TaxTMI 
TaxTMI 
2017 (3) TMI 1707
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....008, was sanctioned a Term Loan of Rs.24 crores and a Cash Credit Limit of Rs. 1 Crore by State Bank Of India (for 'SBI'). Pursuant to the sanction, SBI had distributed in tranches brevity commencing from 30.01.2008, a sum of Rs. 23.50 Crores towards Term Loan and the component of Cash Credit Limit of Rs.l Crore has not been disbursed as of date as the project is yet to be completed. 3. The Corporate Debtor has been irregular in servicing the loan, in relation to Both interest payment and principal repayment and despite restructuring of the loan on 16.01.2009 and rescheduling the repayment, the Corporate Debtor remains a persistent defaulter till today. 4. In the said circumstances SBI had issued a recall notice to the Corporate Debtor recalling the loan on 01.11.2012 demanding repayment of Rs.33,93,00,617.24 as on 31.10.2012 along with applicable interest without any avail, which forced SBI to file O.A.No.188 of 2013 under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for brevity the 'RDDBFI Act') before the Debt Recovery Tribunal....
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.... accounts as well as the fact of assignment and in this connection pointed out that in the audited financial statements for the year 2013-14 the auditors have given a qualified opinion which reads as follows:- BASIS FOR QUALIFIED OPINION 1) Financial Statements have been prepared on going concern basis in spite of notice issued by ALCHEMIST ARC dated 21.07.2014 for recovery of its dues of Rs.45,34,13,224.78 (outstanding balance as certified by the management of the company as at 31.03.2014 is u/s 13(2) read with section 13(13) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The Company also has long term fund deficiency. These factors raised doubts about the company's ability to continue as a going concern which is depend upon infusion of long term funds of its pay off the outstanding amount of the term loan and/or sale of the fixed assets to pay off the amount. No provisions has been made in the accounts for additional interest, penal interest, liquidate damages ....
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....d Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) dated 21.07.2014 for the amount of Rs. 45,34,13,224/- (outstanding balance as certified by the management of the company as at 31.03.2014 is In case the settlement does not come in force or settled at the higher amount more than shown in the balance sheet then that difference amount will be contingent liability which will be not more than Rs. 17,20,29,058.39 as at 31.03.2014. 9. Taking into consideration the records produced it is submitted by the Learned Counsel for the Financial Creditor that the Corporate Debtor is heavily indebted not only to it but also to other Secured Creditors as well as Unsecured Creditors and that there is a clear case for initiation of the Insolvency Resolution Process as contemplated under the IBC for the benefit of all the stake holders. 10. Even though the IBC does not expressly contemplate an opportunity of hearing being granted to the Corporate Debtor nor filing of Objections, the Corporate Debtor was given the opportunity keeping in view....
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....nto consideration the above decisions and the overwhelming evidence placed before us to establish the claim of the Financial Creditor in our view it is, prima facie established that the Corporate Debtor is heavily involved in debts as at present it is not able to service even the interest component, leave alone the repayment of the principal amount due to the Financial Creditor. It is also evident from Annexure P 16 filed by the Financial Creditor which is extracted from MCA portal relating to Corporate Debtor which relates to charges registered. It reveals that there are other Financial Creditors as well, to whom amounts are owed. However from Annexure P 16 it is further seen that in relation to some of the loans for which the properties of the Corporate Debtor had created charges have been satisfied as recently as 27.04.2016 evidencing that the Corporate Debtor is having cash flow and is in a position to service loans. However in relation to the Term Loan taken originally from SBI and subsequently assigned by it to the Financial Creditor herein the Corporate Debtor has defaulted is clearly evident in te....
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....ses to be borrower(s) of assignor Bank and becomes borrower(s) of assignee bank. In view of the above position of law we are unable to appreciate the contentions of the Corporate Debtor. It is also to be noted that for invoking the provisions of Section 13(2) of SARFAESI Act, NPA may be a criteria but in relation to unfolding the Corporate Insolvency Resolution Process as contemplated under the IBC, NPA classification is not a condition precedent and proceedings pending before the Hon'ble High Court of Delhi will not be a bar for this Tribunal in considering the instant petition. Further it is also not seriously disputed by the Respondent when learned counsel for the Petitioner/Financial Creditor apprised this Tribunal about the status quo order by stating that it was issued to protect the possession of the assignee 'financial creditor' and therefore it would not be affected by triggering insolvency process which has been invoked by the Petitioner itself. 14. It is also pertinent to note that the Insolvency Resolution Process as contemplated under the IBC is for the benefit of all stakehol....