TaxTMI 
TaxTMI 
2019 (3) TMI 1780
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....CI Bank Tower, Near Chakil Circle, Old Padra Road, Vadodara 390007, Gujrat and having its Corporate office at ICICI Bank Towers, Bandra-Kurla Complex, Mumbai-400051. 2. Mr. Chetan Prakash, Legal Manager of the Financial Creditor Bank has been empowered to sign and submit the petition by the Power of Attorney dated 28.06.2017 (Annexure P- 1) 3. The Corporate Debtor-Punj Llyod Limited is a company registered under the provisions of the Companies Act, 1956 and was incorporated on 26.09.1988. The identification number of the Corporate Debtor is L74899DL1988PLC033314 and its registered office is situated at Punj Llyod House 17-18, Nehru Place, New Delhi-110019. Its authorized share capital is Rs. and the paid up share capital is Rs. 67,11,91,490/-. These details have been furnished on the basis of master data obtained from the official website of Registrar of Companies. 4. The Financial Creditor has proposed the name of Resolution Professional, Mr. Gaurav Gupta, 203, Savitri Complex- 1, near Dholewal Chowk, Ludhiana, Punjab- 141003, email id [email protected]. He has registration No. IBBI/IPA-OOI / IPP00556/2017-18/ 10986. He has also made declaration and sent a written communica....
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....nd Seventeen Crores and Sixty Lakhs) vide facility agreement dated October 5, 2007 (as amended from time to time). A copy of the facility agreement dated 05.10.2007 is annexed herewith and marked as Annexure P-10. A copy of the Corporate Guarantee dated 08.10.2007 is annexed herewith and marked as Annexure P-11.  The aforesaid details would show that various loan facilities were extended by the Financial Creditor-Bank to the Corporate Debtor to the extent shown in the aforesaid data. 6. The Corporate debtor executed several documents towards availing the aforesaid different loan facilities. It is highlighted that the said loan was further secured by the personal guarantee of Mr. Atul Punj. True Copies of each one of those namely, Debenture Trust Deed dated 21.01.2011, Working Capital Consortium Agreement dated 21.05.2015, Inter-Se Agreement dated 21.05.2015, Common Loan Agreement dated 21.05.2015, Inter Creditor Agreement dated 21.05.2015, Security Trustee Agreement dated 21.05.2015, Facility Agreement dated 05.10.2007, Corporate Guarantee dated 08.10.2007, Memorandum of Hypothecation dated 21.01.2011, Joint Deeds of Hypothecation dated 21.05.2015, Personal Guarant....
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....al amount of default as on 30.04.2018 is Rs. 8,538,377,663.07. Bifurcation of different loan facilities those are namely, cash credit is Rs. 2,052,173,585.61, Devolved BGs is Rs. 1,064,843,250.33, Term Loan, Corporate Guarantee is Rs. 316,706,755.40 & Nonconvertible Debentures is Rs. 436,96,69,520.55, has also been spread out. 11. Dr. U.K. Chaudhary, learned senior counsel for the Corporate Debtor has raised argument to oppose the admission of the petition. Firstly, it is submitted that the RBI Circular dated 12.02.2018 clearly postulates that no petition under the Code be filed if the resolution is pending between the banks who are signatory to the Inter creditors agreement dated 22.07.2018 and the corporate debtor submits a resolution plan within a period of 180 days. Learned counsel has maintained that on account of status quo granted by the High Court of Delhi on 18.09.2018 on a Writ Petition (C) No. 8825 of 2018 filed by the Corporate Debtor against the Union of India the financial creditor is debarred from filing the instant petition. Our attention has been drawn to the RBI Circular dated 12.02.2018 (R-20, pgs. 767-787) and the Inter Creditor agreement dated 23.07.2018 (R-23....
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....implemented as per the timelines specified in paragraph 8, lenders shall file insolvency application, singly or jointly, under the Insolvency and Bankruptcy Code 2016 (IBC) within 15 days from the expiry of the said timeline. Footnote 8 The prescribed timelines are the upper limits. Lenders are free to file insolvency petitions under the IBC against borrowers even before the expiry of the timelines, or even without attempting a RP outside IBC." A perusal of clause 9 of the instructions clearly postulates that if a resolution plan is not implemented within the period of 180 days as provided in para 8 then the financial creditors (lenders) are left free to file insolvency petition under the IBC. In the footnote, it has been clarified that the prescribed timelines are the upper limits and the financial creditors were free to file insolvency petitions under the IBC against borrowers even before the expiry of the timelines, or even without attempting a resolution plan outside IBC. It is thus clear from the circular dated 12.02.2018 that financial creditor-ICICI Bank is not under any legal obligation to wait for a resolution plan which in the present case has not materialised so fa....
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....rporate Debtor is hereby rejected. 16. The last argument raised by Dr. Chaudhary, learned senior counsel for the Corporate Debtor is that the petitioner has also preferred a winding up petition which is pending before Hon 'ble Delhi High Court and in the absence of withdrawal of the same, two parallel proceedings cannot be initiated by continuing the winding up petition and by pressing the petition under Section 7 of the Code. Dr. Chaudhary, learned senior counsel for the Corporate Debtor has placed reliance on a recent judgment of Hon'ble the Supreme Court rendered in the case of Forech India Ltd. v. Edelweiss Assets Reconstruction Company Ltd., Civil Appeal No. 818 of 2018 decided on 22.01.2019 and on the amendment carried out under Section 434 of the Companies Act, 2013 on 17.08.2018 as noticed in para 9 of the judgment in the case of Forech India Ltd. (supra). According to the learned counsel the un-numbered proviso to Section 434 (1) (e) of the Companies Act, 2013 it has been suggested on the basis of the aforesaid proviso that parallel proceedings are not permissible to be carried and If the proceedings were pending before the commencement of the IBC (amendment ordin....
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....amended by the Eleventh Schedule of the Code, the amended Section 434 must be read as being part of the Code and not the Companies Act, 2013 must be rejected for the reason that though Section 434 of the Companies Act, 2013 is substituted by the Eleventh Schedule of the Code, yet Section 434, as substituted, appears only in the Companies Act, 2013 and is part and parcel of that Act. This being so, if there is any inconsistency between Section 434 as substituted and the provisions of the Code, the latter must prevail. 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. This being the case, it is difficult to comprehend how the High Court could have held that the proceedings before the NCLT were without jurisdiction. On this score, therefore, the High Court judgment has to be set aside. The NCLT proceeding will now continue from the stage at which they have been left off. Obviously, the company petition pending before the High Court cannot be proceeded with further in view of Section 238 of the Code. The writ petition....
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.... Section 7 (2) of the Code and other conditions prescribed by Rule 4 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. There is overwhelming evidence to prove default and name of the resolution professional has also been clearly specified. 21. The provisions of Section 7 (2) and Section 7 (5) of IBC stand satisfied but the same may be read as under:- "Initiation of corporate insolvency resolution process by financial creditor. 7 (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. 7 (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) ................" 22. A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the....
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....tation with any financial regulator; (b) a surety in a contract of guarantor to a Corporate Debtor. Additionally, the supply of essential goods or services to the Corporate Debtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. These would include supply of water, electricity and similar other services or supplies as provided by Regulation 32 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 27. We direct the Financial Creditor to deposit a sum of Rs. 2 lacs with the Interim Resolution Professional to meet out the expenses to perform the functions assigned to him in accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order by the Financial Creditor. The amount however be subject to adjustment by the Committee of Creditors. The amount must be accounted for by Interim Resolution Professional and shall be paid back to the Financial Creditor. 28. The Interim Resolution Professional shall perform all his functions religiously and stri....