TaxTMI 
TaxTMI 
2020 (2) TMI 1422
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.... consumer loans, loan against property, home equity loans, term loan etc. 3. M/s. Eskay K 'N' IT (India) Limited is a company incorporated under the Companies Act, 1956 on 24th April, 1987, having Identification No. L18109DN1987PLC000034 and having its registered office at Silvassa (U.T.). That Authorised share capital of the respondent company is Rs. 165,00,00,000.00 and paid up share capital is Rs. 28,08,32,000.00. 4. That, the applicant/financial creditor has submitted that the respondent has defaulted in payment towards principal and interest against the term loans, working capital fund based limit etc., sanctioned/disbursed to the respondent as per the details annexed to the application at page Nos. 4-5. 5. The applicant has submitted copy of the following documents in support of their claim:- Sl. No. Particulars Page Nos. 1 Application by financial creditor for initiation of corporate insolvency against respondent company under section 7 of IBC 1-14 2 Detailed working for computation of disbursed amount and date of disbursement 15 3 Working for computation of amount of default, dates of defaults and days of defaults 16 4 Affidavit verifying the applic....
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....y Registrar for the charge registered with Registrar of Companies 750-757 33 Copy of report available with CIBIL 758-767 34 Speed post AD receipt of dispatch of application and documents copy to corporate debtor 768 6. That, the petitioner being financial creditor has to recover an amount of Rs. 160,17,48,441.41 (Rupees one hundred sixty crores seventeen lakhs forty-eight thousand four hundred forty-one and paise forty-one only) as on 31-7-2018. That, the above amount include principal amount of loans sanctioned under different schemes, accrued interest and penal interest as applicable as per the calculation in tabular form annexed to the application at page Nos. 4-5. 7. That, the respondent filed affidavit in reply inter alia raising various objections. The first and foremost objection raised by the respondent is that the present application filed in August, 2018 is time barred (page 3). It is alleged that the applicant has suppressed material facts (page 4) with regard to the action already taken under the provisions of RDDB Act, 1993. That, the counter claim application filed under the relevant provisions of RDDB Act which has the same effect as of the claim application....
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....o the respondent company approving "sanction of bank's stand on final restructuring package under CDR mechanism". That, the said letter is stamped and signed by the respondent company as a token of acceptance of the terms and conditions laid down in the sanction letter/s. Further, the records reveal that from time to time the respondent has executed/entered into various documents acknowledging the debt. On perusal of the record it is also found that the respondent company has acknowledged the financial debt in the balance sheet as on 31-3-2017, statement of profit and loss for the year ended 31-3-2017, cash flow statement for the period ended 31-3-2017 and notes forming integral part of the balance sheet as on 31st March, 2017 (pages 733-738). This itself shows that the respondent company has acknowledged the debt in the year 2017. Since the application is filed on 21-8-2018, it is well within time. 12. Another objection raised by the respondent is that the power of attorney holder is not competent to file an application on behalf of financial creditor. 13. In this context, it is desirable to refer to the decision of the Hon'ble National Company Law Appellate Tribunal in ....
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....n Para No. 38, it is further held that if an officer of a Bank such as Senior Manager who has been authorised to grant loan, for recovery of loan can also initiate 'Corporate Insolvency Resolution Process'. 16. The Hon'ble Supreme Court, in the Judgment delivered in the matter between Innoventive Industries Ltd. v. ICICI Bank Ltd. [2017] 143 SCL 625, in Para No. 30 has clearly held as follows; "30. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the Adjudicating Authority has merely to see the records of the information utility or other evidence 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 that the Adjudicating Authority may reject an application and not otherwise." 17. The second objection raised by the respondent is that petitioner has failed to establish the default on the part of the respo....
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....ancial creditor. The application is also furnished in the prescribed form - 1 of the Rules and the prescribed fee has also been paid. Along with the application, the applicant has proposed the name of the Interim Resolution Professional namely Mr. Vikas Prakash Gupta. Therefore, this Adjudicating Authority hereby appoint Mr. Vikas Prakash Gupta, Chartered Accountants, 3rd Floor, Plot No. 16, B. Padmanabh Apartments, Tilak Nagar, Nagpur, Maharashtra 440010 having IBBI Registration No. IBBI/IPA-001/IP-P00501/2017-18/10889. Form 2 along with the certificate of registration of the proposed interim resolution professional has been furnished by the applicant separately where declaration is made that no disciplinary proceedings are pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI. 23. In view of the above, the petitioner/financial creditor having fulfilled all the requirements of section 7 of the Code, the instant petition deserves to be admitted. 24. The petition is, therefore, admitted and the moratorium is declared for prohibiting all of the following in terms of sub-section (1) of section 14 of the Code: - (i) the institution of suits or c....