TaxTMI 
TaxTMI 
2019 (7) TMI 1302
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....omplex, Bandra (East) Mumbai-400 051 and one of its branches at Surat Mid-Corporate Branch, Bank of India Building, 1st Floor, Nr. BSNL Office, Ghod-Dod Road, Surat-395 001. 3. The Respondent, M/s. Kaneria Granito Ltd., is a company registered under the Companies Act, 1956, date of incorporation 21st January 2000, vide CIN: U14000GJ2000PLC037275, having its Registered Office at 606/A-2, Tirupati Plaza, Athwa Gate, Near Collector Office, Surat-395 001. 4. The Authorized Share Capital of the respondent-corporate debtor company is Rs. 37,50,00,000/- and the Paid-up Share Capital of the Respondent Company is Rs. 35,15,50,69,000/- 5. It is stated that the respondent-Corporate Debtor company had approached the petitioner-financial creditor for financial assistance/consortium finance, vide application dated 17.02.2005, for purchase of machinery and working capital for its business activity of manufacturing and selling of ceramic tiles at Plot no.3-A, R.S. No.3, situate at mouje village Vadadala, Dahej Port Road, Taluka Vagra, District : Bharuch. However, at the request of the respondent-corporate debtor, vide application dated 17.02.2005, credit facilities were sanctioned by the Petiti....
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....000/- [Depletion from Rs. 15,20,00,000/- to Rs. 9,70,00,000/-) review and Rs. 21.25 crore for F.Y. 2014)]. 7) Working Capital Term Loan of Rs. 17.91 crore fresh) 8) Funded Interest Term Loan-I of Rs. 1.81 crore fresh) 9) Funded Interest Term Loan-II of Rs. 11.27 crore fresh) 10) Non-Fund Based Limits of Rs. 4.00 crore depletion from Rs. 6.00 crore) The total amount of the restructured loan in view of the above aggregated to Rs. 79,85,00,000/- 8. To secure the aforesaid credit facilities, the respondent- corporate debtor company had executed the following documents; 1) Master Restructuring Agreement dated 28.03.2013 2) Trust and Retention Account Agreement dated 28.03.2013 3) Inter-se agreement between the Petitioner Bank, State Bank of India and Allahabad Bank dated 28.03.2013 4) Joint Deed of Hypothecation dated 23.03.2013 5) Loan Facility Agreement dated 28.03.2013 6) Working Capital Facility Agreement dated 28.03.2013 7) Letter of Authority dated 28.03.2013 8) Agreement for pledge of shares dated 24.04.2013 9) Deed of Guarantee dated 28.03.2013 10) Extract of Minutes of Meeting of BOD of the Respondent 11) Memorandum of En....
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....ity Agreement 14-07-2009 100.71 14 Memorandum of Entry 14-07-2009 100.71 15 Supplemental Working Capital Consortium Agreement 12-11-2010 159.14 16 Second Supplemental Joint Deed of Hypothecation (consortium for term loan & working capital-fund & non fund based facilities) 12-11-2010 159.14 17 First supplemental facility agreement (consortium term loan) 12-11-2010 T/L 110.06 W/C 49.08 18 Credit Facility Agreement 12-11-2010 159.14 19 Supplemental memorandum of entry (joint equitable mortgage charge) 12-11-2010 159.14 20 Master Restructuring Agreement 28-03-2013 21 Trust and Retention Account Agreement 28-03-2013 22 Inter Se Agreement 28-03-2013 23 Loan Facility Agreement 28-03-2013 213.69 24 Working Capital Facility Agreement 28-03-2013 59.30 25 Joint Deed of Hypothecation 28-03-2013 213.69 26 Guarantee Deed 28-03-2013 216.77 27 Letter of Authority 28-03-2013 28 Agreement for pledge of shares 24-04-2013 29 Revival Letter 28-03-2013 30 Memorandum of Entry (Registered on 30.03.2013) 28-03-2013 216.77 entered into by us with you as the Lead Bank and the Member Banks in resp....
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....nbsp; 3. Shri Jentibhai V. Modia 4. Smt. Sheetal A. Kaneria FOR VIVEKANAND ENTERPRISE 5. For Vivekanand Enterprise FOR VIVEKANAND ENTERPRISE Sd/- PARTNER Sd/- Sd/- Sd/- Sheetal Kaneria Anil D. Kaneria Sheetal Kaneria Anil D. Kaneria (Partner) (Partner 12. It is further stated that it had filed Original Application No. 481 of 2017 against the respondent before learned Debt Recovery Tribunal-II, Ahmedabad for recovery of Rs. 116,51,33,239.70ps. The Corporate Debtor is liable to pay the above said amount. In the Original Application No. 481/2017, Ld.DRT-II, Ahmedabad, order dated 19.5.2017 granted interim reliefs including injunction against alienation of hypothecated assets as well as mortgaged properties of the respondent-corporate Debtor. 13. It is further stated that despite repeated requests and reminders, the respondent-corporate debtor company had not paid the amount due and payable to the applicant. However, the applicant has filed this application requesting the Adjudicating Authority to- a) to admit the application under Section 7(5) (a) of the Insolven....
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....ult has occurred. Explanation.-For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under subsection (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3). (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and....
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....10364 and there is no disciplinary proceeding pending against the proposed IRP. 21. Further the Hon'ble Supreme Court in the matter of Innoventive Industries Ltd. v. ICICI Bank Ltd. & Anr. [Civil Appeal Nos. 8337-8338 of 2017] has laid down the law by observing as such; "27. The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an instalment amount. For the meaning of "debt", we have to go to Section 3(11), which in turn tells us that a debt means a liability of obligation in respect of a "claim" and for the meaning of "claim", we have to go back to Section 3(6) which defines "claim" to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (Section 4). The corporate insolvency resolution process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. A distinction is made by the Code between deb....
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....mplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under subsection (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be." 22. By following the abovestated proposition laid-down by the Hon'ble Supreme Court and by perusing the record of the case, we find that the IB Petition is complete and its filing is found to be in order. 23. Having heard the submission of Mr. Karan Sanghani, Advocate for the Financial Creditor as well as Mr.Monaal Davawala, Advocate, for the Respondent-Corporate Debtor, the present petition deserves admission. Hence, it is admitted under Section 7 of the I & B Code, with consequential directions given as under; i) This Adjudicating Authority hereby appoint CA Vineeta Maheshwari, as "Interim Resolution Professional" having address at M-19-20-21, Metro Tower, Nr.Kinnaiy Cinema, Ring Road, Surat-395 002 and having Registration No. IBBI/IPA-001/IP-P00185/2017-18/10364 under Section 13 1) c) of the Code. ii) That the o....