TaxTMI 
TaxTMI 
2022 (1) TMI 402
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....en hundred and four only). 2. The gist of the averments in the application are: That the applicant herein after referred to as Financial Creditor is a body corporate constituted by and under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. 3. The respondent herein after referred to as the Corporate Debtor is a limited company incorporated under the Companies Act, 1956, bearing Identification No. U40101TG2007PLC052232, having its registered office given in the cause title. 4. It is submitted that the Corporate Debtor had availed and utilised facilities the following credit facilities under the consortium arrangement with other lenders at different times. The above facilities availed by the Corporate Debtor are secured as detailed hereunder: (i) The Corporate Debtor created mortgage, through Security Trustee-Vistra ICL (India) Limited, in respect of all that piece and parcel of vacant land measuring 129 acres, 27 gunthas and 21 Anna situated at Honkan Village, Uttara Kannada District, Karnataka. (ii) The Corporate Debtor created mortgage of land admeasuring 280.10 acres situate at Ottapidaram and Saminathan Village, Di....
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....e Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 552 of 2018/553 of 2018. * Corporate Debtor relied on yet another order of the Hon'ble NCLAT dated 29.05.2018 (ANNEXURE R-2) passed in Company Appeal (AT) (Insolvency) No. 215 of 2017/231 of 2017. * Account of the Corporate Debtor as on 31.03.2017 was in order with all the lenders, except Bank of India, who had not implemented flexi structuring scheme and classified the account as NPA and because of omission of the PNB, this account was forced to be NPA. That led to filing of OA before Debt Recovery Tribunal, New Delhi under section 19 of Recovery of Debt and Bankruptcy Act, 1993. Yet the present petition is filed on 22.10.2019. * The Corporate Debtor furnished details of its capital structure prior to invocation of pledge by consortium members. PNB, the senior lender invoked the pledge vide letter dated 15.12.2017. * The petitioner/Financial Creditor gave approval in principle to sell the Corporate Debtor/company as a going concern at Rs. 440 crores, which amounts to 41% of the total debt outstanding. * The Financial Creditor did not issue notice before filing petition unde....
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....ebtor?. (ii) Whether the applicant herein has made out a case for initiation of Corporate Insolvency Resolution Process (CIRP) against the respondent/Corporate Debtor? 9. We have heard the learned counsels for both the sides. Perused the record and the case law. POINT No. (i): Undoubtedly, the present application has been filed individually by one of the members of the consortium of lenders Viz, Punjab National Bank for initiation of CIRP against the respondent corporate debtor. The Corporate Debtor had raised an objection as regards the maintainability of the application contending that under law there shall be a common application by all the lenders as the I & B Code 2016 has not envisaged filing of application individually by each lender in cases where there are more than one lender and in that view of the matter the present petition is not maintainable. In order to answer this objection, we profitably rely on section 7(1) of the I & B Code, 2016, which is as follows: "7. Initiation of corporate insolvency resolution process by financial creditor. (1) A financial creditor either by itself or jointly with other financial creditors, or any ot....
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.... for the Financial Creditor to initiate proceedings individually despite being a Member of Consortium of Lenders. Hence the contention of the learned counsel for the Corporate Debtor that the application filed by individual Financial Creditor is not maintainable is devoid of any force or substance. Hence the same is liable to be rejected and accordingly the same is hereby rejected. Point is answered accordingly. POINT No. (ii): 12. It is needless to say that in an application filed under section 7 of the I & B Code, 2016, this Tribunal is required to find whether or not a debt between the parties exists; and if so whether there is a default in discharge of the said debt by the Corporate Debtor. Here it may be stated that the debt referred supra, must be a debt enforceable by law. 13. Insofar as the case on hand is concerned, a perusal of the pleading discloses that the he Corporate Debtor has not disputed availing credit facilities as referred by the Financial Creditor in this application. In fact, the Corporate Debtor in categorical terms had admitted and acknowledged the liability under several of its letters, more particularly, under letter dated 15.03.2017, addresse....
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....17.] issued under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) by the applicant discloses that the account of the applicant has been duly classified as NPA on 31.03.2018. 15. Therefore, when admission of debt in this case being as clear as crystal and as the applicant by placing the undisputed demand notice dated 22.05.2018 issued under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), has also established default on the part of the Corporate Debtor this application of the financial creditor has fully satisfied the requirements viz, existence of "debt" and "default" in repayment of the said debt on the part of the respondent corporate debtor, as such this application is liable to be admitted and initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor is bound to be ordered. We, therefore, accordingly allow this petition. Point is answered accordingly. 16. Now we shall refer to the case law relied upon by the corporate debtor in this case. (i) State Bank of ....
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....judication. 18. In the light of our discussion as above and on considering the entire material placed before us, we hereby hold that this application is liable to be admitted, hence we accordingly admit this Petition under Section 7 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the Code, with following directions:- (A) The respondent Corporate Debtor, M/s. Ind Barath Thermal Power Ltd, is admitted into Corporate Insolvency Resolution Process under section 7 of the Insolvency & Bankruptcy Code, 2016. (B) The Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, Tribunal, arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under Securitization and Reconstruction of Financial Assets and Enforcement of Security int....