TaxTMI 
TaxTMI 
2022 (6) TMI 919
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....n being CP (IB) No.495/MB/2021 filed by Yes Bank Limited, the Financial Creditor/Applicant, under Section 7 of the Insolvency & Bankruptcy Code, 2016 (I&B Code) against Privilege Industries Limited, Corporate Debtor, for initiating Corporate Insolvency Resolution Process (hereinafter referred to as "CIRP"). 2. The Financial Creditor is a Public Limited Company having its Head Office at ONE International Centre, Tower II, 26th Floor, Senapati Bapat Marg, Elphinstone (W), Mumbai - 400013, Maharashtra. This application is filed by Mr. Kapil Thakkar, Senior Vice President - Asset Reconstruction & Management authorized vide a Power of Attorney dated 11.01.2021 (annexed as 'Annexure B' on Page.36 of the Petition), claiming a total amount of De....
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....to the Corporate Debtor thereby enhancing the existing Overdraft Facility from Rs.25,00,00,000 to Rs.40,00,00,000. iv. In addition to the above facilities, the Financial Creditor had also provided - 1) Moratorium Funded Interest Term Loan (MFITL) on moratorium interest amounting to Rs.12,63,42,192/- (Rupees twelve crore sixty-three lakh forty-two thousand one hundred ninety-two only); and 2) Funded Interest Term Loan (FITL) on Term Loan 1, Term Loan 2 and Overdraft Facilities amounting to Rs.27,17,80,710/- (Rupees twenty-seven crore seventeen lakh eighty thousand seven hundred ten only) b. The Financial Creditor in its Company Petition submits (annexed as 'Annexure F' on Page 43 of the Petition) that the total amount outst....
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....id default above the threshold limit in terms of Section 4 of the I&B Code for the purpose of admitting Financial Creditor's present Section 7 application. e. The Financial Creditor further submits that the Corporate Debtor had acknowledged its Recall Notice dated 12.04.2021 (annexed as 'Annexure GG' on Page 1177 of Volume IV (Part II) of the Petition) via Email dated 12.04.2021 (annexed as 'Annexure HH' on Page 1196 of Volume IV (Part II) of the Petition) whereby the Corporate Debtor had informed the Financial Creditor that it was under severe financial stress which had ultimately affected its ability to serve its debt obligations. This, according to the Financial Creditor clearly indicates that the Corporate Debtor had admitted i....
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....rate Debtor acknowledges that there were some delays in payments during December, 2019 and January, 2020 due to reduced cash flows which were exacerbated due to the outbreak of the Covid-19 pandemic, however, subsequent payments were made towards interest in February, 2020 and March, 2020 which can be seen from the Bank Statements on page 1066 (annexed as part of 'Annexure AA (Colly) Part III' on Page 1005 to 1069 of the Petition) made available by the Financial Creditor in its Company Petition. e. The Corporate Debtor submits that it was Housing Development of India (HDIL) who had executed Corporate Guarantees in favour of the Corporate Debtor. The Corporate Debtor further points out that a CIRP has been initiated against HDIL by ....
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.... nowhere in its various replies has disputed the claim amount nor denied the Loan Agreement entered between the parties. 9. The Corporate Debtor in its Affidavit in Reply dated 22.11.2021 stated that the Financial Creditor had not provided any documentary evidence which would prove that the initial default i.e. 'Date of Default' had occurred on 01.01.2020. 10. On perusal of the documents submitted by the Applicant Financial Creditor, it is clear that there exists a financial debt and the debt is in default. However, the Bench is of the view that the date of default is 01.10.2020 as mentioned in the NESL Report as annexed by the Financial Creditor himself at p.502 as Annexure N1- N8 of the petition to show the record of default availab....
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....w loan accounts opened for the purpose of disbursing amounts under the FITL, amounts have been disbursed through 4 accounts, the details of which are at pp.32-52 of the Written Submission of the Corporate Debtor, it is abundantly clear that the loan for FITL was disbursed on 01.09.2020 and the default is outstanding from the period commencing from 01.10.2020. 13. Therefore, relying upon the facts of the case, arguments advanced by both parties and the documents mentioned hereinabove, this Bench is of the view that because of insertion of Sec 10A in IBC as mentioned above, this case is clearly attracted by the provisions of Sec 10A as the date of default in this case is 01/10/2020. As per Sec 10A, no IBC proceedings can be initiated again....