TaxTMI 
TaxTMI 
2020 (1) TMI 1592
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....which is annexed to the Application. 3. The Applicant extended financial assistance to the Corporate Debtor through various term loan totalling to a sum of Rs.9,91,00,000/- details of the same are provided herein below: Sl. No. Particulars of Loan Facility Loan Amount Sanction Letter dated 1. Term Loan -I Rs.433 Lakh 22.08.2009 2. Term Loan -II Rs.283 Lakh 25.11.2010 3. Term Loan -III Rs.150 Lakh 02.06.2011 4. Term Loan -IV Rs.125 Lakh 31.03.2012 Total Rs.991 Lakh 4. Copies of all the Sanction Letters are annexed to Application. The Applicant has also annexed copy of the Deed of Simple Mortgage dated 10.11.2009 and Composite Hypothecation Agreement dated 09.06.2011 executed in favour of the Applicant. 5. The Applicant submits that Corporate Debtor defaulted in repaying the loan amounts on 01.07.2013. In support of the claim of default, Statement of Accounts of the Corporate Debtor has been enclosed along with the workings for computation of Amount, which are annexed to the Application. The Corporate Debtor's account was classified as Non-Performing Asset on 22.09.2013. 6. The Applicant....
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....n, the payment must be shown to be within the original period of limitation whereby a fresh period of limitation would commence. Further, it is argued that such payment would have to be linked to each loan to extend the period of limitation. That, no such submission or clarification or pleading has been made by the Applicant. 11. The Counsel for the Corporate Debtor submits that the Applicant has suppressed material facts such as proceedings before the District Magistrate, the Debts Recovery Tribunal, and the One Time Settlement that was executed between the parties. It is vehemently argued by the Counsel that section 75 of the I&B Code, 2016, requires the Applicant to disclose all material facts and in case of failure of which, penalty may be imposed for suppression. 12. It is submitted by the Counsel for the Corporate Debtor that, perusal of item 5 of form 1 filed by the Applicant shows that, no disclosure whatsoever of the OTS has been made anywhere in the Company Petition. 13. It is submitted by the Corporate Debtor that the OTS dated 27.03.2018 has changed the original bargain between the parties and has resulted into novation in terms of section 62 of the Indian Cont....
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....orporate Debtor has not denied the Loan amount is received, which is a financial debt. 19. The Applicant submits that it is by virtue of order passed by the Ld. DRT Pune, the Corporate Debtor has paid a sum of Rs.50 Lakh. The statement of account of the Corporate Debtor has been annexed to the Application. 20. The Applicant contends that the Application is well within the period of limitation as the SARFAESI proceedings were initiated within the period of limitation and the Corporate Debtor has acknowledged its debt from time to time. The last payment being made by virtue of an order, this Application is within limitation. 21. We have heard the parties and perused the records. 22. On perusal of the records placed before us it is established that this Application has been filed by an authorised representative of the Applicant. 23. The Applicant has annexed the Sanction Letters and loan agreements for the Term Loans along with statement of accounts of the Corporate Debtor and the Certificate under the Bankers' Book Evidence Act, 1891 which establish that the Applicant has granted financial debt to the Corporate Debtor. 24. The Corporate Debtor in its Reply admits th....
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.... company fails to honour any of the terms and conditions of compromise whether fully or partially. The decision of the Bank in this regard shall be conclusive and binding on the company. 9.Any default in compliance of any of the terms and conditions stipulated herein above will be treated as default and which will result in termination of sanction automatically and Bank will proceed to recover the dues through appropriate legal/recovery action without any notice to the Company. Any amount deposited till the time will be adjusted towards the dues and shall not be refunded". 28. On perusal of the terms and conditions of the OTS Letter relied by the Corporate Debtor, the OTS does not amount to novation. The intention of the parties that in case of default of OTS, the total amount payable under the term loan agreements shall be payable. Therefore it becomes imperative to ascertain whether the terms of the OTS have been honoured. 29. The Corporate Debtor has itself placed on record the orders passed by the Ld. District Magistrate under section 14 SARFAESI Act, and orders passed by the Debts Recovery Tribunal, Pune which allowed recovery of Rs.50,00,000/- from the Corporat....
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....nst the corporate debtor for the same relief shall be excluded". 35. In light of the above decision, and the facts of the instant Application, amount of default being above a sum of Rupees One Lakh and the Application having filed on proper form, this Application deserves to be admitted. 36. The Applicant has proposed the name of Mr. Brijendra Kumar Mishra a registered insolvency resolution professional having Registration Number [IBBI/IPA-002/IP-N00109/2017-18/10257] as Interim Resolution Professional, to carry out the functions as mentioned under I&B Code 2016, along with his declaration in Form 2, that no disciplinary proceedings are pending against him. 37. The Application filed under Section 7 of I&B Code, 2016 is complete. The existence of financial debt of more than Rupees One Lakh against the Corporate Debtor and its default is also proved. Accordingly, the application filed under section 7 of the Insolvency and Bankruptcy Code for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor deserves to be admitted. ORDER This Application filed under Section 7 of I&B Code, 2016, filed by Bank of Baroda, Financial Creditor /Applicant, und....