TaxTMI 
TaxTMI 
2021 (10) TMI 491
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....djudicating Authority) Rules, 2016. 2. In the requisite Form-1, under the head "Particulars of Financial Debt" the details of the defaulted amount are given. The date of first sanction for underlying facilities which are outstanding as on 31.10.2020 are as follows: Facility Date of sanction Amount Sanctioned (limit) (in Crores) Principal o/s as on 31.10.2020 (in Crores) Overdraft July 26, 2013 10.00 7.01 Term Loan (Power) June 05. 2010 3.25 0.70 Term Loan-I July 26, 2013 37.75 23.83 Term Loan-II Dec 28, 2015 3.15 2.66 Term Loan-III Dec 28, 2015 10.50 7.11 Total 64.65 41.31 Contentions of the Petitioner: 3. The present application filed under Section 7 of the Code ensues from the default incurred by the Corporate debtor, Maharashtra Theatres Pvt. Ltd. Towards repayment of the credit facilities tendered by the Financial Creditor, Axis Bank Limited. The Corporate Debtor approached the financial Creditor for funding options, wherein the Financial Creditor approved an amount of Rs. 22,50,00,000 crores (Rupees Twenty Two Crores and Fifty Lakhs) (subsequently enhanced to Rs. 23,87,00,000 cr....
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....ing a payment of Rs. 50,99,00,000 (Rupees Fifty Crores and Ninety Nine Lakhs). The Corporate Debtor has failed to meet its obligations and has not deposited any amounts with the Financial Creditor in order to clear outstanding dues. Therefore, the Financial creditor has filed the present application. 10. The securities provided by the Corporate Debtor in favour of the Financial Creditor for the santion of the revised credit facility of Rs. 23,87,00,000 (Rupees Twenty Three Crores Eight Seven Lakhs only) are as follows: a. Deed of Hypothecation dated 27.03.2008 executed by the Corporate Debtor in favour of the Financial Creditor for Rs. 22,50,00,000 (Rupees Twenty Crores Fifty lakhs Only). b. Supplemental deed of Hypothecation dated 13.02.2010 executed by the Corporate Debtor in favour of the Financial Creditor for Rs. 23,87,00,000 (Rupees Twenty Three Crores Eight Seven Lakhs Only). c. Deed of personal guarantee dated 13.02.2010 executed by Mr. Anubhav Aggarwal in favor of the Financial Creditor for Rs. 23,87,00,000 (Rupees Twenty Three Crores Eight Seven Lakhs Only). d. Deed of personal guarantee dated 13.02.2010 executed by Mr. Anil Aggarwal....
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....inancial Creditor for Rs. 47,75,00,000 (Rupees Forty Seven Crores Seventy Five Lakhs only). f. Simple mortgage deed dated 06.08.2013 for Rs. 47,75,00,000 (Rupees Forty Seven Crores Seventy Five Lakhs only) executed by the Corporate Debtor in favour of the Financial Creditor. g. Simple Mortgage Deed to cover Additional Property dated 09.10.2014 for Rs. 47,75,00,000 (Rupees Forty Seven Crores Seventy Five Lakhs only) executed by the Corporate Debtor in favour of the Financial Creditor. 14. The securities provided by the Corporate Debtor in favour of the Financial Creditor for the credit facilities vide sanction letter dated 28.12.2015 to the extent of Rs. 13,65,00,000 (Rupees Thirteen Crores Sixty Five Lakhs only) are as follows: a. Composite Hypothecation Deed dated 28.03.2016 executed by the Corporate Debtor in favour of the Financial Creditor for Rs. 13,65,00,000 (Rupees Thirteen Crores Sixty Five Lakhs only). b. Simple Mortgage Deed to cover Additional Property dated 29.11.2016 executed by the Corporate Debtor in favour of the Financial Creditor for Rs. 3,15,00,000 (Rupees three Crores Fifteen Lakhs only). c. Deed of Guarantee dated....
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....016), the Central Government hereby notifies further period of three months from the 25th September, 2020 for the purposes of the said section." 17. It is submitted that the Ministry of Corporate Affairs vide Notification F. No. 30/33/2020-Insolvency dated 22.12.2020 extended the suspension of Section 7, 9 and 10 of Insolvency and Bankruptcy Code, 2016 for a further period of three months from 25.12.2020. the notification of the Ministry of Corporate Affair is reproduced hereunder: "in exercise of the powers conferred by section 10A of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby notifies further period of three months from the 25th December, 2020, for the purposes of the said section." 18. It is submitted that the Financial Creditor had filed the captioned Company Petition on 30.12.2020 before The Hon'ble National Company Law Tribunal, Mumbai Bench. It is of pertinence to note that the Financial Creditor has filed the Company Petition during the suspension of the Section 7, 9 and 10 of the Insolvency and Bankruptcy Code, 2016. This suspension was affirmed vide Notification dated 22.12.2020 of Ministry of Corporate Affairs and ....
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....was approved by the Petitioner vide sanction on 23.05.2017. 23. The Corporate Debtor also executed mortgage of office premises as collateral security and assigned right which several hypothecated rent receivables. Mr. Anubhav Agarwal and Mr. Anil Agarwal executed guarantee deed in favour of petitioner as personal guarantor. 24. On 23.01.2019, the Petitioner sent a letter to the Corporate Debtor intimating that there are overdue payments in the Corporate Debtor's account till 30.10.2018 and demanded a payment of Rs. 2.98 crores to clear the irregularity. The Petitioner declared the account of Corporate Debtor as a NPA on 29.01.2019. On 11.07.2019, the Petitioner recalled the credit facility vide a letter and invoked the guarantee against the personal guarantor and further demanded payment of Rs. 50.99 crores. On 21.08.2019, the Corporate Debtor responded to the said recall notice. On 24.09.2019, the Petitioner issued notice u/s. 13 (2) of the SARFAESI Act, 2002 and on 06.02.2020, the Petitioner proceeded to take symbolic position of the mortgaged properties situated at RNA Corporate Park, Kala Nagar, Bandra (E), Mumbai. On 13.02.2020, the possession notice was published by the....
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....powers conferred by section 10A of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby notifies further period of three months from the 25th September, 2020 for the purposes of the said section." 28. Further, it is also pointed out the Ministry of Corporate Affairs vide notification F. No. 30/33/2020-Insolvency dated 24.09.2020 extended the suspension of Section 7, 9 and 10 of Insolvency and Bankruptcy Code for a further period of three months from 25.12.2020. The notification is reproduced below: "in exercise of the powers conferred by section 10A of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby notifies further period of three months from the 25th December 2020, for the purposes of the said section." 29. In view of the above notification which extended suspension of Section 7, 9, 10 for a period of 9 months and this notification categorically held that the default has occurred during the said period of suspension, the petition for initiation of CIRP against the Corporate Debtor is not maintainable. The Petitioner in Form-1 claims that the date of default as on 31.10.2020 and sought for an amoun....
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....ligible applicant, the later viz. 'commencement date' refers to passing of order of admission of application by the Adjudicating Authority. The 'initiation date' ascribes a role to the eligible applicant whereas the 'commencement date rests upon exercise of power vested in the Adjudicating Authority. Adopting this interpretation would leave no scope for initiation of CIRP of a Corporate Debtor at the instance of eligible applicant in respect of Default arising on or after 25th March, 2020 as the provision engrafted in Section 10A clearly bars filing of such application by the eligible applicant for initiation of CIRP of Corporate Debtor in respect of such default. The bar created is retrospective as the cut-off date has been fixed as 25th March, 2020 while the newly inserted Section 10A introduced through the Ordinance has come into effect on 5th June, 2020. The object of the legislation has been to suspend operation of Sections 7, 9 & 10 in respect of defaults arising on or after 25th March, 2020 i.e. the date on which Nationwide lockdown was enforced disrupting normal business operations and impacting the economy globally. Indeed, the explanation removes the d....