TaxTMI 
TaxTMI 
2019 (3) TMI 1693
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.... whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 10.10.1990 having its registered office at C-24, Greater Kailash Enclave-I, New Delhi 110048. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub- section (1) of Section 60 of the Code. 3. It is appropriate to mention that the applicant Punjab National Bank is a body corporate constituted under the Banking Companies (Acquisition and Transfer of undertakings) Act, 1970 having its Registered Office at Plot No.4, Sector 10, Dwarka, New Delhi- 110075. 4. Shri Sanjay Kumar Garg authorized representative and working as Assistant General Manager of the applicant bank, has preferred the present application on behalf of the applicant for initiation of corporate insolvency resolution process against the respondent corporate debtor in terms of the provisions of the Code. 5. The applicant has proposed the name of Shri Arvinder Sing....
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.... from Rs. 90 Crores to Rs. 168 Crores on 16.01.2013, and consortium documents in consideration of availing the enhanced credit limit were executed by the respondent company on 16.01.2013. 11. It is stated that subsequently, the applicant as stand-alone, further enhanced Working Capital Limits to Rs. 274 Crores (Fund-based) and Rs. 200 Crores (Non-Fund based) and in consideration of availing the enhanced credit limit respondent company executed loan documents therefor. 12. Due to continuing financial indiscipline and failure in servicing the loan and interest thereon, the account of Corporate Debtor became Non-Performing Asset on 31.12.2013. 13. Corporate debtor's proposal for CDR was approved by consortium led by the financial creditor. Accordingly, Master Restructuring Agreement dated 30.06.2014 was executed between consortium led by Financial Creditor and the Corporate Debtor. 14. It is alleged that since the Corporate Debtor failed to fulfil its commitment under CDR, the same was revoked. As CDR could not be implemented the account was to be treated as NPA w.e.f. 31.12.2013. 15. Thereafter the applicant sent Demand Notice under Section 13(2) of the SARFAESI Act but....
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....r of Jaipur Metals and Electricals Employees Organization vs. Jaipur Metals and Electricals Ltd. and Ors. reported in 2018 (15) SCALE 836 in which Hon'ble Supreme Court has observed that: 17. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding up proceedings before the High Court. It was open for Respondent No. 3 at any time before a winding up order is passed to apply Under Section 7 of the Code... .... 18. ...We are of the view that the NCLT was absolutely correct in applying Section 238 of the Code to an independent proceeding instituted by a secured financial creditor, namely, the Alchemist Asset Reconstruction Company Ltd. (emphasis given) 23. Similarly, in the case of Forech India Ltd. v. Edelewiss Assets Reconstruction Co. Ltd. in Civil Appeal No. 818 of 2018, despite pendency of winding up proceedings before High Court, Hon'ble Supreme Court vide order dated 22.01.2019 has observed that, "financial creditor's application which has been admitted by the Tribunal is clearly an independent proceeding which must be decided in accordance with the provisions of the Code". 24. Hon'ble Supreme Court has thu....
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....ection 7 of the Code, individually or jointly on behalf of other financial creditors' as quoted below, the Inter-se Agreement between the financial creditors' cannot override the said provision, nor can take away the right of any Financial Institution to file application under Section 7 of the I&B Code. " 30. Accordingly, applicant bank individually being a financial creditor has a clear right to file application under Section 7 of the Code, once there is a debt and default. 31. The scheme of the Code provides for triggering the insolvency resolution process by three categories of persons namely, a) Financial creditor b) Operational creditor, and c) Corporate debtor itself. 32. The procedure in relation to the Initiation of Corporate Insolvency Resolution Process by the "Financial Creditor" is delineated under Section 7 of the Code, wherein only "Financial Creditor" / "Financial Creditors" can file an application. As per Section 7 (I) of the Code an application could be maintained by a Financial Creditor either by itself or jointly with other Financial Creditors. 33. The expressions "Financial Creditor" and "Financial debt" have been defined in Section 5 (7....
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....s on record and the loan documents clearly depict that the loan was sanctioned, disbursed and the loan agreements were properly executed. Respondent company utilized and enjoyed the loan facility from time to time. There has been creation of mortgage by deposit of title deeds. Moreover, personal as well as corporate guarantees were executed in order to secure the loan facility. The charge certificate issued by the registrar of Companies has been placed on record, which supports the claim of creation of charge to secure the loan facility availed from the applicant bank. 39. In addition, the applicant bank has filed the statement of accounts duly certified in accordance with Bankers' Books Evidence Act, 1891 as per requirement of Form-I part V column 7 of the application. Certified copy of statement of account pertaining to various loan facilities, kept during the course of banking business basing on which the claim has been raised can be termed as sufficient evidence of the financial debt. 40. It is thus seen that the applicant financial creditor' has placed on record voluminous and overwhelming evidence in support of the financial debt as well as to prove the default. ....
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....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 recover-y of any property by an Owner or lessor where such property is occupied by or in the possession of the corporate debtor. 47. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018 which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14 (3) (b) of the Code. 48. The Interim Resolution professional shall perform all his functions contemplated, inter-alia, by Sections 15, 17, 18, 19, 20 & 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance wit....