TaxTMI 
TaxTMI 
2019 (7) TMI 506
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....ead of the bank has authorized Gurcharan Singh to file the application under Section 7 of the Code against the respondent-corporate debtor and to do all the acts in the progress of the case. By another authority letter dated 25.05.2018 (Annexure A-2) Mr. D.K. Gupta, Advocate had been permitted to be engaged for representing the bank in the Tribunal. 2. The instant application has been filed in Form-1, as prescribed under Rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the 'Rules') giving all the necessary particulars. The respondent-corporate debtor was incorporated on 17.01.2005 under the Companies Act, 1956 with authorized share capital of Rs. 2,00,00,000/- and paid up share capital of Rs. 1,86,50,000/-. It has its registered office at Chandigarh and therefore, the matter falls within the territorial jurisdiction of this Tribunal. Annexure A-3 is the copy of memorandum and article of association of the respondent-corporate debtor and certificate of incorporation of the company is at Page 87 of the paper book. 3. The facts of the case, briefly stated, are that the respondent-corporate debtor approached the bank for gran....
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....-corporate debtor also executed letters of continuity dated 14.08.2014, Annexure A-40; 24.11.2015, Annexure A-39; 24.11.2015, Annexure A-42 and another letter of continuity dated 26.11.2015, Annexure A-43. According to these documents, the corporate debtor hypothecated Balero Car, two Genio Pick up vans, Toyota Innova Car, JCB Machine worth Rs. 18.68 lacs, Jeep & Truck to be purchased with the loan amount and hypothecation of entire stock of building material etc., current assets and entire immovable property comprising of residential house, flat, plot and other built up residential house by creation of equitable mortgage by deposit of title deed. Annexure A-44 is the first page of the title deed register by deposit of the title deeds for creating equitable mortgage. Annexure A-49/A dated 06.11.2009, 05.02.2011, 21.12.2015 and 16.02.2016, are the Renewal and General Counter Indemnity regarding Bank Guarantee. 6. The corporate debtor is said to have committed default in making payments and the amount was declared NPA. The petitioner-financial creditor issued a notice dated 16.07.2016 (Annexure A-11) under Section 13(2) of the Securitization and Reconstruction of Financial Assets an....
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....ancial creditor also relied upon a letter dated 27.09.2016, Annexure A-49, written to the bank by the National Small Industries Corporation Limited ('NSIC'), stating therein that the bank had furnished the bank guarantee to the tune of Rs. 90,00,000/- on behalf of the respondent-corporate debtor in favour of NSIC. It was mentioned in the letter that NISC will return the bank guarantee to the bank on receipt of the amount of bank guarantee through RTGS transfer in favour of NSIC, thereby bringing further evidence to the fact that corporate debtor had defaulted. There are other correspondences in this regard between the corporate debtor and the bank regarding renewal of the Bank Guarantee, but ultimately NSIC wrote the aforesaid letter to the bank. The documents of Renewal and General Counter Indemnity regarding bank guarantee of different dates, are at Annexure A-49/A 10. Notice of this petition was sent to the respondent-corporate debtor to show cause as to why this petition be not admitted. Appearance was made by Mr. Manish Jain, Advocate, for the respondent and reply has been filed. The allegations of facts with regard to the grant of loan and the default committed by the respon....
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....y the petitioner-financial creditor in respect of Plot No.294, Sector 27, Panchkula, Haryana, by which the petitioner-bank has realized an amount of Rs. 88 lacs and the same has not been accounted for in the statements of account, relied upon by the petitioner-bank. The bank statement reflects a credit entry of Rs. 49,18,800/-against the E-auction amount which is at variance with the amount of the sale of the property and this discrepancy has not been explained. 14. It is also stated that the respondent-corporate debtor has been in dialogue with the petitioner-bank to settle the loan accounts at regular intervals and wrote various letters and e-mails to settle the NPA account under One Time Settlement (OTS) Policy. For reference, one such OTS dated 15.06.2018 is at Annexure R-2. The respondent has shown readiness to settle the outstanding dues under the said non-discretionary and non- discriminatory policy. The letters of the bank in this regard are Annexure R-3 (Colly). 15. It is also alleged that the petitioner-bank has sent legal notices to the sundry creditors of the respondent-corporate debtor asking them not to make payments to the respondent towards the amount due. It was ....
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....- (b) Ria Constructions (CC) : Rs. 49,18,800/- (c) Ria Constructions (CC) (07.03.2018) : Rs. 2,000/- (d) Ria Constructions (CC) (28.09.2018) : Rs. 52,513/- (e) Payment to HUDA (Jan, 2018) : Rs. 66,387/- (f) TDS (22.02.2018) : Rs. 81,100/- Total :Rs. 81,10,000/- 18. With regard to the OTS Policy dated 15.06.2018, it is submitted that the proposal of the respondent-corporate debtor was rejected vide letter dated 22.05.2018. Thereafter, the respondent-corporate debtor, vide another letter dated 04.10.2018, submitted the OTS proposal, which was not in consonance with the OTS Policy in vogue and the same was also replied by the bank on 04.10.2018. Copy of the letter sent by the bank is at Annexure A-3. 19. We have heard the learned counsel for the parties and have perused the record quite carefully. 20. Section 7(1) of the Code says that the financial creditor may file an application against the corporate debtor in the event of default of debt and as per sub-section (2) of Section 7 of the Code, the application has to be filed in Form No.1, as prescribed in the Rules. This compliance has been duly made by the petitioner. 21. Sub-section (3) of Section 7 of t....
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....r has clearly mentioned the aforesaid fact in the synopsis while describing facts of the case and that would be sufficient to say that the bank has come up with clean hands. 25. In Column No.2 of Part 4 of the application form, the bank has clearly stated that the amount in default as on 04.06.2018 is Rs. 14,60,04,716.98 and further stating that the account was declared NPA on 14.07.2016. 26. With regard to the pendency of the proceedings in the Reference Court, where the award in favour of the petitioner has been challenged that would not be a relevant aspect to be considered while deciding the instant petition. The award has been passed by the Arbitrator for an amount of Rs. 367.72 lacs with interest in favour of the corporate debtor, but it has not been explained as to how the said submission would be important for the disposal of the instant petition. If the respondent-corporate debtor is engaged in proceeding against its customers for initiating appropriate proceedings against the debtors of the corporate debtor under the provisions of the Code that is not justified for the corporate debtor to oppose the claim made by the financial creditor because the financial creditor is ....
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.....IBBI/IPA-001/IP-P00648/2017-2018/11105. While issuing notice to the respondent, it was directed that along with the notice copy of application with entire paperbook and fresh written communication in Form 2 be also sent. The petitioner filed compliance affidavit. We have perused the written communication in Form 2. All the necessary particulars have been given by Mr. Desh Deepak, who has certified that currently, he is not serving as Interim Resolution Professional/Resolution Professional/Liquidator in any proceedings. He also certified that there are no disciplinary proceedings pending against him with the Insolvency and Bankruptcy Board of India or Indian Institute of Insolvency Professionals of ICAI. We find the Form to be in order. 31. With regard to the plea of the proposal of OTS, we find the same to be not acceptable as the OTS Proposal was rejected by the bank and this Tribunal cannot go into the validity and/or decision taken by the bank. 32. We therefore, hold that the conditions provided for in Section 7(5) (a) of the Code are fulfilled and the petition for initiation of the Corporate Insolvency Resolution Process against the corporate debtor, Ria Constructions Limite....
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....the managers of the 'Corporate Debtor' shall report to the Interim Resolution Professional, who shall be enjoined to exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under Section 18 and other relevant provisions of the 'Code', including taking control and custody of the assets over which the 'Corporate Debtor' has ownership rights recorded in the balance sheet of the 'Corporate Debtor' etc. as provided in Section 18 (1) (f) of the 'Code'. The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the 'Corporate Debtor'; (iv) The Interim Resolution Professional shall strictly act in accordance with the 'Code', all the rules framed thereunder by the Board or the Central Government and in accordance with the 'Code of Conduct' governing his profession and as an Insolvency Professional with high standards of ethics and moral; (v) The Interim Resolution Professional shall cause a public announcement within three days as contemplated under Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Proce....