TaxTMI 
TaxTMI 
2018 (10) TMI 1747
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....e, 2016 (IBC) by Asset Reconstruction Company (India) Limited (hereinafter referred to as 'ARCIL Company'), Financial Creditor against Shivam Water Treaters Private Limited, Corporate Debtor, to initiate Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor on the grounds that, as on 27.09.2017, Corporate Debtor has defaulted in making repayment of debt amounting to Rs. 1,24,34,45,232/- collectively under the Cash Credit Facility, Corporate Loan I and Corporate Loan II. 2. It is pertinent to note the brief facts that led to the present petition. State Bank of India (hereinafter referred to as "SBI") i.e. the original lender sanctioned credit limits for a total amount of Rs. 39,37,00,000/- vide its sanction let....
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....d the financial secured assets of the SBI vide a Registered Assignment Agreement dated 28.03.2014 acting in the capacity of Trustee of Arcil-AST IV-Trust (hereinafter referred to as 'ARCIL Trust'). 5. The counsel for the Petitioner submits that it being an assignee, falls in the definition of Financial Creditor as per section 5(7) of IBC, 2016. As per section 7(1) of IBC, 2016 a Financial Creditor can file an application for initiation of CIRP of corporate Debtor either by itself or jointly with other financial creditor or any other person on behalf of the financial creditor. Hence ARCIL Company in its capacity as a trustee of ARCIL Trust is entitled to file the application in terms of Section 7(1) of IBC, 2016. 6. The counsel f....
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.... Petition. At the very onset of the hearing the counsel for the Respondent submitted that there is direction for this petition to be heard by Bench constituting specific Members and hence shall be listed before such Bench of NCLT. The counsel for the Respondent submits that the present petition under section 7 of IBC is filed by the ARCIL Trust and not by the ARCIL Company as the Petitioner in its application states that it is acting in its capacity as a trustee of ARCIL Trust. The Respondent alleges that the present Petition is without power and authority as it is signed by the representative of the ARCIL Company and not the representative of the ARCIL Trust and the same is not supported by any duly executed Trust resolution. The Responden....
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.... that the petition is time barred as being filed beyond the limitation period of three years from the date when the account of the respondent company was classified as NPA on 21.07.2011. 11. On perusal of the petition and the documents filed it is noted that the SBI i.e. the original lender sanctioned credit limits for a total amount of Rs. 39,37,00,000/- vide its sanction letter dated 17.09.2009 which was secured by various security documents. SBI along with Allahabad Bank who is also a lender of the Corporate Debtor constituted SBI consortium vide an inter se agreement on 10.10.2009 and SBI was nominated as the lead bank in the consortium. Allahabad Bank executed a Letter of Authority in favour of SBI authorizing them to take all....
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....rust. Therefore ARCIL Company is a financial creditor in the meaning of section 5(7) and we donot find any force in the argument of the Respondent that the ARCIL Company is not a Financial Creditor in terms of provisions of IBC, 2016. 14. The Respondent has nowhere disputed the existence of debt to SBI and neither has it raised any question on default in repayment of the Debt. Hence the Debt and default is admitted. The only contention of the Respondent is regarding the assignment of the said debt which is already settled as per our discussion above. Therefore, the there is clear existence of a debt as defined in Section 3(11) of IBC, also there is default in this case within the meaning of Section 3(12) of IBC without any evidence of di....
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.... a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d) The recovery of any property by an owner or lessor where su....