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2020 (5) TMI 394
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....ndertakings) Act, 1970. The application has been filed by the duly authorised officer, Shri Dineshchandra Maganlal Patel, Bank of India, University Road Branch, Rajkot. 2. The Respondent Corporate Debtor (CD) Company, namely Jyoti Power Corporation Private Limited was incorporated on 30-3-2006 with CIN: U45204GJ2006PTC048048. 3. The nominal share capital of the Respondent (CD) Company is Rs. 40,50,00,000/- divided into Rs. 4,05,00,000/- Equity Shares of Rs. 10/- each and the paid-up capital of the company is Rs. 39,04,45,150/-divided into Rs. 3,90,44,515/- Equity Shares of Rs. 10/-each. The Registered Office of the Corporate Debtor Company is situated at: Matru Jyot, 1st Floor, Opp. Agro Petrol Pump, Gondal - 360311, District - Rajkot, Gujarat. As per the copy of Memorandum of Association and Articles of Association of Corporate Debtor reveals that the erstwhile company, Jyoti Engineers and Contractors Private Limited changed its name to Jyoti Power Corporation Private Limited and are carrying on the business of engineering and contract work on job-work basis or otherwise of all kinds of electricity works including erection of towers and electricity lines for government, semi....
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....It is further submitted that the Corporate Debtor company continued to approach the said BOI consortium Banks to sanction/restructure/revise/renew/enhance various credit facilities periodically and such requests were favourably considered by the aforesaid BOI consortium Banks to meet the credit needs of the Corporate Debtor Company. It is further submitted that upon request of the borrower company, the aforesaid BOI consortium banks, lastly sanctioned/restructured/revised/renewed/enhanced the credit facilities vide their respective sanction letters, wherein the Applicant Bank, as per the sanction letter dtd: 27-3-2014, granted Fund Based Term Loans/FITL limits of Rs. 103.00 Crores, Fund Based Working Capital of Rs. 70.00 Crores and Non-Fund Based Limits of Rs. 106.00 Crores (total Rs. 279.00 crores) 7. In consideration thereof and in order to avail the above sanctioned/restructured/revised/renewed/enhanced Credit Facilities, the Corporate Debtor company, through its Director, Mortgagors - Shri Niteshbhai M. Kataria & Shri Mavjibhai M. Kataria and Corporate Guarantor, M/s.Jyoti Power Transmission Pvt. Ltd., signed and executed Bank's standard loan documents on 7-8-2014 in fav....
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....in their various accounts with the Financial Creditor and ultimately, Corporate Debtor failed to repay the secured debts in all the credit facilities of restructured debts and Corporate Debtor stopped its accounting operation in its various restructured debts/credit facilities with the Financial Creditor, Bank of India. 11. It is further submitted that as the Corporate Debtor failed to adhere to the terms and conditions of the said restructuring of various credit facilities and as per RBI policies and directives and guidelines applicable to classification of accounts as NPA, in case of restructured facilities, the accounts of the Corporate Debtor came to be classified as NPA with effect from 28-10-2013 as per such applicable guidelines and directives of RBI. However, on 30-5-2015, various credit facilities of Corporate Debtor were classified as NPA with effect from 28-10-2013 (date of NPA as recorded in the system) in the books of the account of the Financial Creditor as per applicable directives and guidelines as applicable to restructured credit facilities of Corporate Debtor. 12. Subsequently, the Applicant recalled the loan and invoked the guarantees and initiated measure....
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....calculation in tabular form as on 7-7-2018 along with CIBIL report and Valuation reports. 16. The present application has been filed by the Financial Creditor under section 7 of the Insolvency & Bankruptcy Code, 2016 read with rule 4 of the Insolvency & Bankruptcy before this Adjudicating Authority to initiate the Corporate Insolvency Resolution Process. 17. The Financial Creditor, to substantiate its claim, has enclosed following documents: - i. Copies of all sanction letters (Page Nos. 77 to 116 of paper book); ii. The statement of accounts of the Corporate Debtor maintained by Bank of India along with Certificate issued under Banker's Book Evidence Act (Page Nos. 130 to 146 of paper book); iii. Copy of Second Supplemental Joint Deed of Hypothecation dated 7-8-2014 executed by the Corporate Debtor in favour of BOI consortium consisting of Bank of India, IDBI Bank Limited and State Bank of India annexed at Annexure I/34(Page Nos. 482 to 500 of paper book); iv. Copy of Second Supplemental Working Capital Consortium Agreement dated 7-8-2014 executed by the Corporate Debtor in favour of BOI consortium consisting of Bank of India, IDBI Ban....
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.... 730 to 731 of paper book); xiv. Copies of Valuation Reports (Page Nos. 852 to 1030 of paper book); xv. Copy of CIBIL Report (Page Nos. 1031 to 1104 of paper book); 18. In the present matter, this Tribunal, vide its order dated 31-7-2018 had issued a formal notice to the Corporate Debtor for filing their objections and accordingly, the Petitioner filed the proof of service of notice before this Tribunal on 14-8-2018. Thereafter, the Respondent, Corporate Debtor appeared before this Tribunal on 05-9-2018 and sought time to file objections within two weeks. On 23-10-2018, the Learned Counsel appearing on behalf of the Respondent submitted that on 30-8-2018, the bank has issued a letter to the Respondent accepting their OTS proposal and the Respondent has written a letter to the bank on 25-9-2018, which is to be considered by the Bank. Hence, time was sought. Thereafter the matter was adjourned to 17-12-2018, 29-1-2019, 18-3-2019, 27-5-2019, 4-7-2019, 27-8-2019, 23-9-2019, 04-10-2019 & 25-11-2019. 19. In response to the present I.B. Petition filed by the Petitioner Bank, the Respondent has filed its affidavit in reply on 29-1-2019, raising preliminary objection....
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....thority for referring the matter to mediation and conciliation panel. The Applicant has filed its written submissions, wherein the Applicant has relied upon the judgment of Hon'ble NCLAT in the matter of Parvinder Singh v. Intee Capital Ltd.. and judgment of Hon'ble Supreme Court in the matter of Swiss Ribbons (P.) Ltd., v. Union of India [2019] 101 taxmann.com 389/152 SCL 365 and thus submitted that the mediation process can be conducted and the insolvency application can be set aside thereon. It is further submitted that as per the provisions of the Companies Act, 2013, this Adjudicating Authority can suo motu also refer the matter for mediation and conciliation and no consent of the other side is required for such reference. It is also submitted that the Corporate Debtor had proposed an amount of Rs. 77.00 crores towards full and final settlement against the finance provided by the consortium of Banks against which the banks had also replied vide letter dated 30-8-2018. It is submitted that inspite of sending continuous letters to the Applicant Bank, no substantive reply has been received from the Applicant bank. Hence, it is vital to mentio....
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....reditor to trigger the C.I.R.P. because the nature of remedy being sought for under the provisions of the I.B. Code is "Remedy in Rem" in respect of the CD. 29. The Corporate Debtor has submitted a revised and final OTS proposal on 25-9-2018 for Rs. 77.00 Crores to be paid on or before 31-3-2020; however, the Financial Creditor advised the Corporate Debtor to submit the assets and liabilities statement of the Corporate Debtor company, its Director, personal guarantors and corporate guarantors etc., however, such conditions were not complied by the Corporate debtor. 30. The Financial creditor had sanctioned a total limit of Rs. 250.00 Crores of Fund Based and Non-Fund Based facilities to the Corporate debtor and thereafter also restructured the limit to Rs. 279.00 Crores against which the FC has claimed an amount of Rs.l53,89,88,763.98Ps in Cash Credit Facility A/c. No.311930110000002, Rs. 76,81,73,985.81Ps in Term Loan A/c. No. 313065410000018, Rs. 43,38,09,181.08Ps in Term Loan A/c. No.313065410000019 and Rs. 36,11,99,567.51 Ps in Funded Interest Term Loan A/c. No. 313065510000004. 31. The Financial Creditor has submitted at page no. 11 of the Petition that the CD has pai....
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....tion has been filed within the limitation period, as the existence of debt due is found in the statement of accounts as on 7-7-2018, CIBIL Report and the last payment into the account has come on 20-8-2015, when this petition under section 7 has been filed on 13-7-2018; (f) Further, the Corporate Debtor is acknowledging the debts by offering OTS proposal of Rs. 77.00 crores on 25-9-2018 after the application is filed before the adjudicating authority on 13-7-2018. (g) Copy of the Application filed before the Tribunal has been sent to the Corporate Debtor and the application filed by the Petitioner Bank under section 7 of IBC is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process against the Corporate Debtor. Hence, the present IB Petition is admitted with the following Directions/observations. The date of admission of this petition is 5-2-2020. 35. IA 620 of 2019 is filed by the Respondent under section 60(5) read with section 442 of Companies Act, 2013 against the Applicant Bank with a prayer to refer the matter for mediation and conciliation panel. Having heard the arguments from both sides, we do not find any m....
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....d by this Adjudicating Authority and to follow the provisions under sections 13 and 14 and other relevant provisions of the Insolvency & Bankruptcy Code. 38. The IRP is hereby advised to adhere the time limit as stipulated for completion of the Corporate Insolvency Resolution Process ("CIRP" in short) and perform the duties as specified under section 17, 18, 20 and 21 of I&B Code. The Interim Resolution Professional shall perform all his functions contemplated, inter alia, in sections 15, 17, 18, 19, 20 & 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the 'Code', Rules and Regulations. It is further made clear that all the personnels connected with the Corporate Debtor, its promoters or any other persons associated with the Management of the Corporate Debtor are under legal obligation under section 19 of the Code to extend every assistance and co-operation to the Interim Resolution Professional as maybe required by him in managing the day-to-day affairs of the 'Corporate Debtor'. In case there is any violation, the Interim Resolution Professional would be at liberty to make appropriate app....
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....he judgment of my Learned Technical Member. While in agreement with the conclusion of the present I.B. Petition by admitting the same under section 7 of the I&B. Code, I will express my opinion in respect of the disposal of the I.A. No. 620 of 2019 on its merits as the same was filed by the Corporate Debtor for referring it to the mediators. 2. It is a matter of record that in the present IA, oral submissions of the Ld. Counsels for both the parties were heard. However, the Counsel for the Financial Creditor has opposed such application for referring the matter for mediation. At such belated stage, while the main I.B. Petition came to be filed in the year 2018. Since then the efforts were being made by the Corporate Debtor for settling the matter, but the same has not so far been materialised. 3. As per the material available on record, the Corporate Debtor, at earlier point of time proposed for making settlement of its debt for an amount of Rs. 77.00 Crore, which was not acceptable to the Bank. Hence, it did not make any effective reply to the same and the Bank has shown its reluctance for proposal for settlement. 4. During the course of arguments, the Learned Senior Advo....