2019 (3) TMI 351

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....orporate Debtor by way of loan. The Corporate Detor executed demand promissory note and various other documents in favour of the Financial Creditor having availed cash credit facility. In 2007, credit facility was increased. The Corporate Debtor again executed the demand promissory note and other documents having availed the facility. Thereafter, in the year 2008, 2010 and 2014, the credit facility was increased and the Corporate Debtor also executed the documents in favour of the Financial Creditor having availed the cash credit facility. On 01.04.2015, such document was lastly executed by the Corporate Debtor in favour of the Financial Creditor having availed the cash credit facility. 2.2 It appears from the record that since the Corporate Debtor was unable to pay the loan and committed default in paying the loan instalment, on 02.06.2016, the Financial Creditor issued the notice of demand calling upon the corporate debtor to repay the outstanding amount. Upon receipt of the notice and on 16.07.2017, the corporate debtor executed the balance confirmation letter for loan amount of Rs. 13,24,47,526/-. On 22.02.2018, the Corporate Debtor sent the Financial Creditor the letter giv....

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....editor and Ld. Counsel Mr. Reetobroto Mitra for the corporate debtor at length. 7. Ld. Counsel for the Corporate Debtor relied on the two rulings, i.e. (i) Asian Power Controls Ltd. v. Bubbles Goyal  and (ii) Canfin Homes Ltd. v. Llyods Steel Indus to support his argument that such type of winding up proceeding cannot be filed by secured creditor against the company unless he abandons the security charge against the property of the company. 8. It is not in dispute that Financial Creditor (Bank) has granted cash credit facility to the Corporate Debtor in the year 2005. The credit facility was increased from time to time. The Corporate Debtor executed demand promissory note and other documents having availed the credit facility. Last credit facility was granted of which amount was disbursed on 22.09.2014. This fact is not in dispute. 9. The Corporate Debtor challenged this proceeding mainly on three grounds: a) Financial Creditor having filed recovery proceeding in the D.R.T., Kolkata Bench, cannot file this application on selfsame cause of action; b) Time-barred debt is not sought to be recovered by way of this proceeding and c) Financial Cre....

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.... the DRT. The bank stated in the same paragraph, "instant application under section 19 has been filed within three years of the execution of balance confirmation letter of defendent no.1 company on 19.06.2014". Apart from that, the financial creditor by way of supplementary affidavit produced on record the balance confirmation letter dated 16.06.2017 (Annexure-Z) to the supplementary affidavit whereby the corporate debtor admitted and acknowledged the debt of Rs. 13,24,47,526.00 This proceeding is filed on 07.03.2018. It is filed well within period of limitation provided for recovery of debt and hence it has to be held that above amount is due and payable by the Corporate Debtor to the Financial Creditor. 13. It is also argued by the ld. Counsel for the Corporate Debtor since the proceeding in between the parties is pending in DRT, the debt sought to be recovered is not crystallised. However, in view of section 4 of I&B Code, default of a sum of more than Rs. 1 lakh by the corporate debtor in respect of debt of the creditor gives jurisdiction to this authority to start CIRP of the Corporate Debtor. In this case, the corporate debtor thus gave one-time settlement offer to the ban....

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....09337223514, 0789441233) of 4, Lake Gardens, Near Yuvak Sangha, Kolkata- 700 045 having Email id: [email protected] and registration no.lBBI/IPA-001/IP-P00598/2017-18/11050. A written communication dated 02.03.2018 of Mr. Surya Kanta Satapathy, proposed IRP, mentions that there are no disciplinary proceedings pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI. 18. So, considering the facts of the case, evidence on record and the law points involved herein, I hold the Financial Creditor proves that there is a debt against the Corporate Debtor of which they committed default. This application is not defective in any manner. Hence, I allow the same and proceed to pass the following order. ORDER i) The application filed by the Financial Creditor under Section 7 of the Insolvency & Bankruptcy Code, 2016 is hereby admitted for initiating the Corporate Resolution Process in respect of N.K. Louha Udyog Pvt. Ltd. Moratorium order is passed for a public announcement as stated in Sec.13 of the IBC, 2016. ii) The moratorium is declared for the purposes referred to in Section 14 of the Insolvency & Bankruptcy Code, 20....