2020 (1) TMI 1253

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.... of Undertaking) Act 1970, having its Registered office at Dena Corporate Centre, C-10, G-Block, Bandra Kurla Complex, Bandra E, Mumbai 400 051 and branch at Dhebar Road, Rajkot 360 002, Gujarat State. 3. During pendency of this application, Dena Bank is merged with Bank of Baroda vide Government of India Gazette Notification dated 02.01.2019. Accordingly cause title of the instant application is amended vide order 15.04.2019. 4. The respondent/corporate debtor M/s. Shree Khodal Cot-Gin Private Limited is a company incorporated under the Companies Act, 1956 on 22.10.2012, having identification No. U17200GJ2012PTC072418, having its registered office at Taluka Paddhari, Dist. Rajkot, Gujarat State. That, Authorised share capital of the respondent company is Rs. 3,50,00,000/- and paid up share capital is Rs. 3,25,00,000/- 5. That, the applicant bank has submitted that through its Dhebar Road Branch, Dist. Rajkot granted various financial credit facilities to the corporate debtor as per the details given below and disbursement of the said facilities were made from 27.12.2014 onwards: (i) CC facility of Rs. 6,50,00,000.00 (ii) Term Loan of Rs. 1,84,58,000.00 ....

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....39     13 Agreement of hypothecation dated 20.12.2014 40-52     14 Letter of general lien and set off dated 20.12.2014 53     15 Declaration & undertaking for consent dated 20.12.2014 54     16 Power of attorney (book-debts) dated 20.12.2014 55-58     17 General undertaking dated 20.12.2014 59-66     18 Registered instrument relating to deposit of title deeds dated 20.12.2014 67-76     19 ROC certificate dated 06.01.2015 for registration of charge 77-83     20 Demand notice dated 27.09.2018 u/s 13(2) of Securitisation Act 84-86     21 Copies of entries in a bankers book in accordance with the Bankers Book Evidence Act, 1891 87-133     22 Audited balance sheet submitted by the corporate debtor to the applicant along with letter dated 27.12.2016 for the year 2015-16 134-162     23 Proof of dispatch of the present application along with the supporting documents 163 9. Respondent appeared and filed affidavit in reply accomp....

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....payable, which includes non-payment of even part thereof or an instalment amount. For the meaning of "debt", we have to go to Section 3(11) which in turn tells us that a debt means a liability of obligation in respect of a "claim" and for the meaning of claim, we have to go back to Section 3(6) which defines claim to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (Section 4). The corporate insolvency resolution process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. A distinction is made by the Code between debts owed to financial creditors and operational creditors. A financial creditor has been defined under Section 5(7) as a person to whom a financial debt is owned and a financial debt is defined in Section 5(8) to mean a debt which is disbursed against consideration for the time value of money. As opposed to this, an operational creditor means a person to whom an operational debt is owed and an operational debt under Section 5(21) means a claim in respect of provision of goods or services. 28. When it comes to a financial creditor....

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.... who commits a default of financial debt, the adjudicating authority has merely to see the records of the information utility or other evidences produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is "due", i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority then the adjudicating authority may reject an application and not otherwise.....". 16. That, the application is found to be complete in all respect. Hence it does not warrant any rejection or dismissal. 17. That, the records available shows that the applicant bank had sanctioned cash credit limit and term loans to the respondent company, to be repaid within the stipulated, period as per the terms and conditions agreed between the parties. That, the applicant bank had issued notice dated 27.09.2018. Records available shows that the respondent has not cared to reply the notice issued by the applicant. 18. In the instant application, from the material placed on record by the Appl....