TaxTMI 
TaxTMI 
2022 (8) TMI 655
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....deal with this petition. 3. The application is filed claiming a total default of Rs.218,14,20,222.95 (Rupees Two hundred and Eighteen crore Fourteen lakhs Twenty Thousand Two hundred and Twenty-Two and paise Ninety-Five only) and date of default stated to be 30.04.2018. This Application is filed by Mr. Vinod Kumar Porwal, Chief Manager, of the Financial Creditor duly authorized to file this application vide letter dated 15.11.2017. 4. Part IV of the Section 7 Application shows that the Applicant has filed the Section 7 Application basis following dates of default: Facility Amount in default in Rs. Date of defaults Term Loan 1 37,63,33,783.45 30.01.2016 Funded Interest 4,90,16,105.07 30.09.2015 Term Loan II 50,34,10,876.82 30.01.2016 Funded Interest 6,66,52,574.70 30.11.2015 Cash Credit 60,13,43,090.66 29.10.2015 Letter of Credit 58,46,63,792.25 23.09.2015 Total 218,14,20,222.95 Submissions made by Financial Creditor: Debt and Default: 5. Bank of Baroda ("Applicant") states that it had granted certain term loan and working capital facilities to Topworth Urja & Metals Limited ("Corporate Debtor") from time to time which wer....
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....0000893 37,63,33,783.45 Funded Interest Term Loan I 06960600001281 4,90,16,105.07 Term Loan II 06960600001006 50,34,10,876.82 Funded Interest Term Loan II 06960600001282 6,66,52,574.70 Cash Credit 06960500000075 60,13,43,090.66 Letter of Credit 06960900000060 58,46,63,792.25 The total amount in default as on April 30, 2018 218,14,20,222.95 8. The factum of default on the part of Corporate Debtor in repayment of the Facilities is evident from the following documents annexed to the Application: (a) Record of default under the report of the Central Repository of Information on Large Credits dated 1st September 2017. (Exhibit-8, Vol-II, pages 366 to 368 [relevant serial No.19 on page 367 and serial no.8 on page 368] of the Application) (b) Record of default under the report of the CIBIL dated 1st August 2017 (Exhibit-8, Vol-II, pages 369 to 503 of the Application): (i) Term Loan I (06960600000893) - Credit Facility 106 (Exhibit-8, page 440 of the Application); (ii) Funded Interest Term Loan I (06960600001282) - Credit Facility 108 (Exhibit-8, page 442 of the Application); (iii) Term Loan II (06960600001006) -Credit Facility 107 (Exhib....
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....s, 2016, makes it clear that the following are other sources which evidence a financial debt: (a) Particulars of security held, if any, the date of its creation, its estimated value as per the creditor; (b) Certificate of registration of charge issued by the Registrar of Companies (if the corporate debtor is a company); (c) Order of a court, tribunal or arbitral panel adjudicating on the default; (d) Record of default with information utility; (e) Details of succession certificate, or probate of a will, or letter of administration, or court decree (as may be applicable), under the Indian Succession Act, 1925; (f) The latest and complete copy of the financial contract reflecting all amendments and waivers to date; (g) A record if default as available with any credit information company; (h) Copies of entries in a bankers book in accordance with the Bankers Books Evidence Act, 1891. " 11. It is further submitted that the Principal Outstanding amounts in default provided in the Statement of Accounts are also acknowledged by the Corporate Debtor in its Annual Report for the Financial Year 2015-16. 12. Further, the Corporate Debtor has acknowledged a debt of R....
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....f the requirements of Section 4 of the Code has been satisfied, any objection with regard to the amount would be maintainable before the Committee of Creditors. Submissions made by the Respondent: 17. The Respondent submits that the present application is liable to be dismissed on following grounds: I. the present Section 7 Application has been filed on the basis of an incorrect date of default; II. the alleged amount claimed by the Applicant is not due and payable in fact and thereby the present application under section 7 of the Code is defective; and III. the alleged amount is not due and payable in law, it being barred by limitation. I. The present Section 7 Application is defective as the same has been filed on the basis of an incorrect date of default. 18. The Applicant had granted certain loans and working capital facilities to the Respondent from time to time which were restructured on the terms and conditions set out in the Master Restructuring Agreement, dated 30.03.2015 ("MRA") Exhibit7, Section 7 Application, pages 261 to 342). The Applicant has filed the present Section 7 Application on the basis of an alleged default committed under this MRA. 19. The Resp....
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.... State Bank of India v. Krishidhan Seeds Pvt. Ltd. CA(AT)(I) 972of 2020 wherein it has been held that there cannot be two dates of defaults in respect of the same debt, one for the purpose of proceedings filed before the DRT and other for the purpose of proceedings before this Tribunal. See paragraph 4 of State Bank of India v. Krishidhan Seeds Pvt. Ltd. CA(AT) 972 of 2020 (Pages 165, 166 of Judgement Compilation) II. The alleged amount claimed by the Applicant is not due and payable in fact 23. It is submitted that the present Section 7 application has been filed by the Applicant on the basis of the alleged default committed under the MRA. The MRA was entered into between the Applicant and the Respondent on 27.03.2015. Relevant causes of the MRA are as follows: i) In terms of Clause 8.2 of the MRA, the Applicant had a right to revoke the MRA on account of failure by the Respondent to make payment of any amount due under the MRA (Exhibit 7, Section 7 Application, pages @311). ii) Further, in terms of Clause 8.3 of the MRS depicting consequence of revocation of MRA, in case of any default in the MRA and subsequent revocation of the MRA, the rights and remedies of the Applican....
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....as the case may be. Further, as has been stated above, a debt is not due if it is not payable in law or in fact. 30. The Respondent submits that in the present case, debt is not due as the same is not payable in law, it being barred by limitation. 31. The Respondent submits that Section 7 Application has been filed on the basis of incorrect date of default. The Section 7 Application could only have been filed on the basis of the date of NPA which in the present case is either 01.12.2014 or 27.03.2015. However, the present Application filed on 17.05.2018 which is 3 years after the date of declaration of account as NPA. Therefore, the present application is barred by limitation. 32. The Respondent submits that it is a settled law that date of declaration of the account as NPA is the starting date of counting a three (3) year period of limitation for the purpose of application under Section 7 of the Code. In support of the arguments, reliance is placed upon the following judgements: See paragraph 3, 6 of Gaurav Hargovind Dave v. Asset Reconstruction Company India Ltd. and Anr. Civil Appeal No.4952 of 2019 (pages 56, 57, of Judgement Compilation). See paragraph 3 of Sri Kaustuv R....
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....ccount of the Corporate Debtor became NPA. Thereafter, the Applicant and Respondent vide Agreement dated 30.03.2015 entered into MRA. Excerpts of Schedule of repayment agreed vide MRA is also annexed to the Petition under which repayment was to be made till 2024-25. Even after entering the MRA, the Corporate Debtor defaulted the repayment schedule of MRA. 37. Vide letter dated 01.02.2016, the Financial Creditor called upon the Corporate Debtor to pay a sum of Rs.174.61 crore being the amount due and payable as on 31.12.2015 within 7 (Seven) days from the date of receipt of recalled notice. Therefore, it can be construed as date of default were taken by the Applicant were correct. The Corporate Debtor failed to comply with the MRA. 38. Secondly, the Corporate Debtor contented that the amount claimed in the Application is not due and payable, the moment there is revocation of the MRA, the rights and liabilities of the parties falls back to the original facility agreements which were already declared NPA by the Applicant as has been demonstrated above upon the perusal of records. We have noticed that both the parties entered into MRA and there is no record of terminating MRA. Theref....
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....on 7 of the IBC read with rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) against Topworth Urja & Metals Limited [CIN: U27109MH1993PLC074950], the Corporate Debtor, is admitted. (b) There shall be a moratorium under section 14 of the IBC, in regard to the following: (i) 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; (ii) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; (iii) Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002; (iv) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor. (c) Notwithstanding the ....