TaxTMI 
TaxTMI 
2019 (7) TMI 1302
X X X X Extracts X X X X
X X X X Extracts X X X X
....e at Star House, C-5, G-Block, Bandra Kurla Complex, 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 17.02.20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. 19,12,00,000/- review)] 6) Cash Credit Hypo. Stock and Book-Debts) Rs. 9,70,00,000/- [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 28.0....
X X X X Extracts X X X X
X X X X Extracts X X X X
....5.12 08 Consortium Agreement 04-02-2008 83.70 09 Joint Deed of Hypothecation 04-02-2008 83.70 10 Memorandum of Entry (Joint Equitable mortgage charge) 04-02-2008 83.70 11 Consortium Agreement 14-07-2009 100.71 12 1st Supplemental Joint Deed of Hypothecation 14-07-2009 100.71 13 Credit Facility 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... In the presence of sd/- Shri Manoj D Kaneria Dated the 28th day of November, 2015 I/We confirm the above and make similar acknowledgement in respect of my/our liability under the Deed of Guarantee dated 22.03.2006, 15.05.2007, 04.02.2008, 14.07.2009, 12.11.2010, 28.03.2013. Guarantor/s: Sd-/ Sd/- 1. Shri Anil D. Kaneria 2.Shri Manoj D. Kaneria Sd-/ Sd/- 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 Rec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t liberty to lodge its claim before the IRP/RP in case the petition is admitted. 17. We have gone through the above stated averments of the present petition. A perusal of the present application filed by the Applicant-Financial Creditor shows that the same appears to be complete and in conformity with the provisions of Section 7 of the I & B Code and Rules Applicable. Section 7 of the Code reads as under; 7. Initiation of Corporate insolvency Resolution Process by Financial Creditor. (1) A financial creditor either by itself or jointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default 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, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 3(12) "default" means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be. 19. Thus, it is established that there is default of debts which comes to Rs.l47,04,98,496.01ps. Hence, the present application can be considered for its Admission. 20. The Financial Creditor has proposed the name of CA Vineeta Maheshwari [Registration No.IBBI/IPA-001/IP-P00185/2017-18/10364] in the present Insolvency Application, which satisfied with the requirement of Section 7(3) (b) of the I & B Code. However, the Financial Creditor has also annexed a Written Communication received from the proposed Interim Resolution Professional for giving consent in prescribed Form 2, wherein he has mentioned his Registration No.IBBI/IPA-001/IP-P00185/2017-18/10364 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 tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plication 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 in 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 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 admissio....