2018 (7) TMI 2133

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....nk of Commerce authorised to file the instant petition vide authority letter dated 30.12.2017 issued by General Manager, Oriental Bank of Commerce in exercise of powers conferred upon him by the Board resolution No.A-24 dated 16.12.2017 of the Oriental Bank of Commerce and vide power of attorney dated 04.09.2013 (Annexure 1/1 and Annexure 1/2 of the petition). 2. As per master data of the corporate debtor available at Annexure 1/3 of the petition, the corporate debtor was incorporated on 06/05/1998 having been allotted CIN U15312PB1998PTC021364. The registered address of the corporate debtor as per the master data is Village Awankha, Dinanagar, Distt. Gurdaspur, Punjab. Therefore, the matter lies within the territorial jurisdiction of this Bench of the Tribunal. 3. It is stated that the corporate debtor already availed financial facilities from a consortium of 6 banks and in 2016, to meet its further requirements, the corporate debtor approached the petitioner for grant of credit facilities in the form of Cash Credit limit which was disbursed on 31.03.2016 being cash credit limit of Rs. 20 crores. It is stated that the financial facilities to the corporate debtor were sanctio....

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....the Rules, the petitioner has dispatched a copy of the petition by speed post on 12.01.2018. The copy of the tracking report showing the delivery of the postal article to the corporate debtor on 15.01.2018 was filed during the course of proceedings on 27.02.2018. Vide order 27.02.2018, it was pointed out to the petitioner that the computation chart as required in Col.2 of Part IV of Form 1 was not filed and the defect was required to be removed within 7 days. The compliance was made by diary No.710 dated 12.03.2018 stating that the petitioner had already provided the duly certified copy which is as per the requirement of Bankers Books Evidence Act and that the total outstanding as on 30.08.2017 (date of declaring the account as NPA) was Rs.20,69,37,204 and total outstanding as on 31.12.2017 including interest was Rs.21,64,33,811. 7. Vide order dated 27.02.2018, notice of the petition to the corporate debtor to show cause as to why the petition be not admitted was directed to be issued. The corporate debtor filed reply by diary No.1729 dated 22.05.2018 stating that the petitioner represents about 8% of the total credit facilities which have been advanced to the corporate debtor a....

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....) is stated to be submitted to the bank. It is stated that a JLM meeting was scheduled to be held on 19.01.2018 and a copy of the minutes of the meeting were not provided to the corporate debtor but the revised re-structuring proposal was not considered since the petitioner contended that they have already approached the Tribunal. It is stated that banks must first take a decision on the re-structuring proposal and therefore, the present petition is not maintainable. 10. During the course of the arguments, the learned counsel for the petitioner stated that in its reply, the corporate debtor had not raised any objection to the completeness of the petition and to the occurrence of the default in payment of the principal and interest of the cash credit availed by the corporate debtor from the petitioner. In reply, the learned counsel for the corporate debtor argued that the instructions of RBI dated 01.07.2015 and 12.02.2018 were binding and before filing the petition for initiation of the corporate insolvency resolution process, the restructuring proposal is required to be considered. It is argued that since the petitioner approached the Tribunal, the re-structuring proposal was n....

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.....2 of Part IV of Form 1 has been filed by diary No.710 dated 12.03.2018 as discussed above. Therefore, this defect was also removed. The name of the resolution professional proposed to act as Interim Resolution Professional has been proposed in Part III of Form 1 and Form 2 has also been filed. As discussed above, the requirement of Rule 4(3) of the Rules regarding forwarding copy of the petition to the corporate debtor has also been met in the present case. 14. Section 7(5)(a) of the Code requires satisfaction of the Adjudicating Authority before admission of the petition on the following issues: (i) a default has occurred, (ii) application under Section 7(2) of the Code is complete, (iii) no disciplinary proceedings are pending against the proposed resolution professional. As discussed above, all the three conditions are satisfied in the present case. Objections in this regard have also not been raised by the corporate debtor. The only objection of the corporate debtor is that the restructuring proposal was required to be first considered before the application was filed by the petitioner before the Tribunal. 15. The learned counsel for the corporate debtor has pla....

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....is sentence has to be seen in the context of the earlier discussion wherein discrepancies in the re-structuring proposal and absence of suitable reply by the representatives of the corporate debtor were noted. Therefore, the last sentence of para 6 only informs the corporate debtor that his proposal for re-structuring can be considered in case he submits a viable proposal. However, no proposal was submitted within the time limit given as discussed above. The contention of the learned counsel for the corporate debtor that the re-structuring proposal was required to be first considered does not have any basis, more so in the context of non-cooperation with the stock auditors and consequent reference to the special investigative audit (para 2 and 3 of the JLF meeting held on 16.09.2017 - Annexure R-4 of the reply). 18. The learned counsel for the corporate debtor has also referred to para 7 of the minutes of JLF meeting held on 02.12.2017 (supra) in which it is noted that the decision of filing application before the Tribunal by individual banks was deferred till approval from respective competent authority was obtained. There is no requirement under the Code that the approval of t....

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....cts and there is no defect pointed out by the corporate debtor. It is also proved that payment of the unpaid operational debt has not been made. 21. In this case the petitioner has also proposed the name of Resolution Professional to be appointed as Interim Resolution Professional in Part-III of the application in Form 5. The name of Mr.Dinesh Kumar Seth, registered Resolution Professional with IBBI having Regn.No.IBBI/IPA-02/IPN00014/2016-17/10018 has been proposed. It is certified by the authorised representative of the petitioner in Form 1 that to the best of his knowledge, Mr.Dinesh Kumar Seth is fully qualified and permitted to act as Insolvency Resolution Professional. Mr.Dinesh Kumar Seth has also furnished his written communication in Form 2 (Annexure-II of the petition) disclosing all the necessary particulars certifying that there are no disciplinary proceedings pending against him with the Board or ICSI-IPA and he is not serving as an interim resolution professional/resolution professional/liquidator in any proceedings. Having perused the form, we find the same to be in order. 22. In view of the above, the instant petition deserves to be admitted. The petition unde....