TaxTMI 
TaxTMI 
2018 (8) TMI 1840
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....k to the Corporate Debtor to the extent of Rs. 101,15,73,308/- as on 28.02.2018 with further interest, which were assigned to them by an Assignment Agreement dated 30.03.2013 executed by Corporation Bank. 2. The Petition reveals that Corporation Bank, Industrial Finance Branch, Pune and Indian Overseas Bank, Cantonment, Pune, in a Consortium arrangement, on the request of the Corporate Debtor sanctioned the following facilities on 22.12.2007: Sr. No. Nature & Extent of facilities 10B Limit (Rs. In Lacs) Corporation Bank Ltd. (Rs. In lacs) 01 Term Loan 1,420.00 1,530.00 02 Cash Credit 750.00 750.00 03 Bill Discounting 750.00 750.00 04 Letter of Credit 400.00 400.00 05 Existing Term Loan 150.00 (Sub-limit) Buyers Credit (200.00) (400.00) Forward Sale Contract (600.00) (400.00) Total Amount 3470.00 3430.00 3. Subsequently, Corporation Bank rephased/ enhanced the facilities from time to time and the last sanction in 2010 is as below: Sr.No. Date Nature of facility Amount sanctioned (in Lacs) 1. 27.08.2010 Cash Credit 1250.00 2....
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....gs with the sole aim of browbeating the Corporate Debtor and forcing it to pay the unrealistic claim of the Petitioner. b. The Petitioner is guilty of suppressio veri and suggestio falsi since the Petitioner deliberately concealed and/or placed on record distorted facts. c. The Corporate Debtor submits that not all the properties mentioned at no. (i) to (ix) in part IV of the petition are of the Corporate Debtor and hence the Petition deserves to be rejected. d. Mr. Varun Agarwal who has filed the Petition has no right, authority and power to file the Petition for and behalf of the Petitioner, the Petitioner has at no point of time authorised Mr. Agarwal to file the Petition and hence Mr. Agarwal has done it without authority, the Petition is not as per Form 1(1) rule 4 of Rules, 2016 and hence the Petition deserves to be rejected. e. The Resolution passed by the Board of Directors of Corporate Debtor in the meeting held on 13.10.2017 does not confer power on Mr. Varun Agarwal to file this petition as the resolution does not comply with the fundamentals of resolution under Companies Act, 2013 read with SSI i.e. Secretarial Standard on Meeti....
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....ate Debtor submitted that it is necessary to consider the judgement of the Hon'ble High Court of Bombay, Nagpur Bench in LPA No. 131/2003 decided on 17.06.2003 wherein it was observed that "there is no presumption in law that the bank documents and the bank officers are always truthful and the citizens or the borrowers are always false or liars. The tribunals must change such presumptive approach in favour of the banks and financial institutions, which are also manned by the frail human beings. There is nothing sacrosanct about them and their documents which are the subject to the law of evidence."- which perfectly applies to the facts and circumstances of the present case. k. The Corporate Debtor submits that the loan Accounts of the Corporate Debtor is not properly maintained and in fact as on 31.3.2013 the Loan Account Statements enclosed with the petition shows zero balance, as on 28.02.2013 the working capital term loan account shows an opening balance of and closes at on the very same date which is absurd, the computerised statement at page 31 varies with the statement filed at page 32 and 33, likewise the same kind of discrepancies are pointed ....
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....thority Rules, 2016) and hence the contention of the Corporate Debtor is denied. c. The Corporation Bank declared the Account as NPA on 08.07.2011 which is found in the demand notice issued under section 13 (2) of the SARFAESI Act by Indian Overseas Bank on behalf of the Consortium Banks. d. Since the reply to the objections of the Corporate Debtor against SARFAESI notice issued by 10B dated 16.01.2012, is annexed to the Petition, the contention of the Corporate Debtor that the Petition is incomplete is false. e. The DRT Aurangabad on 19.11.2016 vacated the Interim stay, granted by it on a Securitisation Application filed by the Corporate Debtor and hence the reply of the Corporate Debtor is false and filed with malicious intention. f. It is submitted that the Petitioner has not violated the provisions of the Securitisation Act, 2002 and in fact it is the Corporate Debtor who trespassed into the property and taken forceful possession of the property after AIRCIL (assignee of 10B) taken possession of the mortgaged property under SARFAESI Act, thereafter AIRCIL filed complaint against the representatives of the Corporate ....
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.... matter are pleaded in the petition. 13. The petitioner in the rejoinder submitted that the properties mentioned in the Form 1 are the properties of the Corporate Debtor as per the records of the ROC and hence the contention of the Corporate Debtor that all the properties does not belong to the Corporate Debtor is not correct. 14. As far as the authority of Mr. Varun Agarwal for filing this petition is concerned, the Board of Directors of the petitioner Company passed a resolution on 13.10.2017 authorising, Mr. Varun Agarwal, inter alia among others, to initiate legal proceedings on behalf of the petitioner and the same is in order. In respect of the allegation that the resolution is not in consonance with the Companies Act, and Secretarial Standards is a highly technical objection which need not be given any importance in view of the fact that the proceedings are under Insolvency and Bankruptcy Code and not under the Companies Act. 15. This Bench has gone into the details provided in the Form 1 filed by the petitioner and the same is in order and hence the contention of the petitioner that the petition filed is not as per Form 1 does not deserve any consideration. 16. ....
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....ised debits, the accounts maintained by the banks are not sacrosanct and there are mistakes in the statement of accounts while carrying forward the balance etc. are made now only at this distant point of time. However, the Corporate Debtor is at liberty to point out those unauthorised debits in the account, etc. to the Interim Resolution Professional/ Resolution Professional at the time of admission of claim, which will be dealt with him/ her in accordance with law. 20. The contention of the Respondent that the Petitioner is not in position of original Memorandum of Equitable Mortgage dated 11.06.2008, the Petitioner submitted that mortgage was created in favour of 10B in the year 2008 and 2009 and the charge was created in favour of 10B on the basis of Memorandum of Title Deeds which was also registered with ROC. Since 10B is the leader of consortium it is natural that the Title Deeds are in possession of 10B. Hence the contention of the Respondent that the Petitioner has not placed on record the memorandum's dated 24.12.2008 and 03.12.2009 and hence the Petition deserves no consideration, is not correct. 21. The Hon'ble NCLAT in the case of Unigreen Global Private L....
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....porate debtor in Part Il, particulars of the proposed interim resolution professional in part Ill, particulars of the financial debt in part IV and documents, records and evidence of default in part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred jn the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the....