AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 2034
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....on Process has been prayed for, was incorporated on 27.04.2007 having its registered office at R - 122, Greater Kailash - I, New Delhi - 110048. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the 3. NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 4. It is appropriate to mention that the applicant Punjab National Bank is a body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970 having its registered office at PNB, Plot No. 4, Sector 10, Dwaraka, New Delhi - 110075. Mr. Anoop Kumar Saxena, authorized representative of the applicant and working as Chief Manager has preferred the present application on behalf of the applicant Punjab National Bank for initiation of corporate insolvency resolution process in terms of the provisions of the Code. 5. The applicant bank has proposed the name of Mr. Nilesh Sharma, for appointment as interim resolution professional having registration number ....
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....Mr. Shambu Prasad Singh and Mr. Jai Prakash Narayan Singh as personal guarantors. Subsequently on 21.01.2011 Agreement of Guarantee was additionally executed by Ms. Jaspreet Kaur in favour of applicant Bank. 11. That apart Letter of Continuity was given by Corporate Debtor on 19.01.2011 in respect of property plot no. 350, Sector 3, Phase-Il, Industrial Growth Centre, Bawal, Haryana. Another letter of Continuity was given by Corporate Debtor on 19.01.2011 in respect of residential house no. C- 3/275, Vipul Khand, Gomti Nagar, Lucknow. Further, Letter of Continuity was also given by Corporate Debtor in respect of factory land and building situated at A- 43, Sector 8, Noida, U P. 12. It is stated in the application that Term Loan (Car) for a sum of Rs. 27 was sanctioned on 10.03.2011 in favour of the Corporate Debtor. In order to secure the car loan Letter of 13. Hypothecation was executed by the Corporate Debtor on 23.03.2011. Besides Agreement of Guarantee was executed by Shambu Prasad Singh for Term Loan (Car) for a sum of Rs. 27,38,000/-. In addition Agreement of Guarantee was executed by Ms. Nirmala Bhatter for said Term Loan (Car) to secure the loan of Rs. 27,38,000/-. 14. ....
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....ted to repay the outstanding financial debts and failed to pay the dues of the applicant bank. Accordingly, applicant bank has prayed for initiation of insolvency proceedings against the Corporate Debtor under the provisions of Section 7 of the Code. 23. The respondent corporate debtor has filed its reply on 13.09.2018. Various objections raised by the respondent company in its reply are dealt with in seriatim below. 24. It is the case of the respondent that the applicant bank has filed multiple litigations in different Forums and has indulged in forum shopping. It is pointed out that Original Application No. 84 of 2013 filed by applicant bank is still pending before Debt Recovery Tribunal, New Delhi for adjudication. Besides applicant bank has initiated action under Section 13(4) of SARFAESI Act, 2002 to take forcible symbolic possession of the properties of the corporate debtor. It is stated that respondent company had filed application under section 17 of the SARFAESI Act, 2002 for setting aside the Securitization Notice which is also pending before Debt Recovery Tribunal New Delhi. It is further submitted that applicant bank has preferred appeal before Appellate Authority PML....
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.... case of M/S Innoventive Industries Ltd. V. ICICI Bank and Ors reported in AIR 2017 SC 4084 Hon'ble Supreme Court has also held at para 56 that: "The non-obstante clause, in the widest terms possible, is contained in Section 238 of the Code, so that any right of the corporate debtor under any other law cannot come in the way of the Code". 30. In view of the above discussion, the objection in this regard will not sustain as initiation and pendency of proceedings in different forums is no bar for initiation of Corporate Insolvency Resolution Process under Section 7 of the Code in view of the overriding effect given to the provisions of Section 238 of the Code. 31. The respondent has also taken objection that the petitioner has claimed different amount of debt in different forums. The respondent has furnished the following table in the reply to show the discrepancy in the claimed debt. S. No. Forum Date Debt Amount Alleged approx. 1. Notice under Section 13(2) of SARFAESI Act, 2002 Feb 2012 2979 Lakhs 2. OA No. 84 of 2013, Debt Recovery Tribunal, New Delhi March 2013 3541 Lakhs 3 Charge-sheet filed by CBI in FIR No. RC BD1/2014 /E/0003 Jan 2014 2979 Lakhs 4. ....
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.... of Delhi vide order dated 22.09.2017 in Criminal Appeal No. 187 / 2015, and the applicant Bank's Petition is pending before Hon ble Court of Delhi. The existence of OTS and subsequent payments made by the Respondent demonstrates the Respondent's desire and ability to pay back the debt, once opportunity and adequate time is allowed. 36. In this regard it is pertinent to note that in financial transactions, adjustments and compromise are to be left to the parties to settle the matter in their best interest or exigencies of the business. However, in the absence of any binding compromise agreement/ debt restructuring approval, it is beyond the powers of the adjudicating authority to extend time indefinitely or to defer the prayer of applicant financial creditor for admission of the petition filed under Section 7 of the Code. Needless to say that time is the essence of the Code. A far strict time fra_me is expected to be followed by the Adjudicating Authority at every stage of the proceedings. Accordingly, further time as sought for cannot be allowed in violation of the provisions of the Code. 37. Be that as it may once despite demand there is default in repayment of the loan....
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....fied as to the existence of the default and has ensured that the application is complete and no disciplinary proceedings are pending against the proposed resolution professional, it shall admit the application. The adjudicating authority/Tribunal is not required to Zook into any other criteria for admission of the application. (Emphasis given) 44. An application under Section 7 of the Code is acceptable so long as the debt is proved to be due and there has been occurrence of existence of default. What is material is that the default is at least I lakh. In view of Section 4 of the Code, the moment default is of Rupees one lakh or more, the application to trigger Corporate Insolvency Resolution Process under the Code is maintainable. 45. It is seen that the applicant has placed various documents in relation to the disbursement of the loan to the respondent company. The materials on record and the loan documents clearly depict that that the loan was sanctioned and the loan agreements were properly executed. Respondent company utilised and enjoyed the loan facility. The applicant bank has filed various documents pertaining to creation of charge over the assets of the respondent co....
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.... to claim its outstanding financial debt from the corporate debtor and that there has been a default in payment of the financial debt. 50. As a sequel to the above discussion and in terms of Section 7 (5) (a) of the Code, the present application is admitted. 51. Mr. Nilesh Sharma, having registration number IBBI / IPA - 002 / IP - N00104 /2017 - 18/ 10232, resident of C-9/ 160, Yamuna Vihar, New Delhi 110053 with email id [email protected] mobile no. 9811418701 is appointed as an Interim Resolution Professional. 52. In pursuance of Section 13 (2) of the Code, we direct that public announcement shall be made by the Interim Resolution Professional immediately (3 days as prescribed by the IBBI Regulations) with regard to admission of this application under Section 7 of the Insolvency & Bankruptcy Code, 2016. 53. We also declare moratorium in terms of Section 14 of the Code. The necessary consequences of imposing the moratorium flows from the provisions of Section 14 (1) (a), (b), (c) & (d) of the Code. Thus, the following prohibitions are imposed: "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including e....