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2022 (8) TMI 655
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....Therefore, this Bench has jurisdiction to 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 Topw....
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.... to the Facilities is as under (Exhibit -4, Vol. I, page 20 of the Application): Facility Loan numbers and drawdown numbers Amount in default in Rs. Term Loan I 06960600000893 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 (Exh....
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....settled position that entries in the Bankers Book as per the Banks Book Evidence Act 1891 are an evidence of debt. The Hon'ble Supreme Court held that: "55. Apart from the record maintained by such utility, From I appended to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 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 ....
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....incipal Bench of this Hon'ble Tribunal in IFCI Ltd. v. Era Housing and Developers India Ltd. IB-489(PB/2017) (Para 17). It is a settled position as held by the Hon'ble National Company Law Appellate Tribunal in and that as an Adjudicating Authority it has not been entrusted with any function to determine the amount of default. Once the default has occurred and one of 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 gr....
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....93. The Applicant in the OA filed in the said proceedings also has categorically admitted that the date on which the account of the Applicant was declared as NPA was 27.03.2015 (See Annexure 3 of Additional Affidavit of Respondent dated 28.08.2020, @ 43). On this count also, the Section 7 application is liable to be dismissed. 22. In support of its argument, the Respondent relies upon the judgement of Hon'ble NCLAT in 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 follow....
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....t payable in law, it being barred by limitation. 28. Under Section 7(5) of the Code, Corporate Insolvency Resolution Process in respect of Corporate Debtor can only be initiated once the Tribunal is satisfied that a default has occurred. 29. Under Section 3(12) of the Code, default means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the Corporate Debtor, 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 l....
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....his behalf; and .........." 35. We have heard the arguments of Financial Creditor and Corporate Debtor and perused the records. 36. The Corporate Debtor has contended the matter and opposed admission on three grounds. First being debt claimed under Section 7 Application is stated to be on the basis of incorrect date of default. While perusing the records, we have observed that the Financial Creditor granted various facilities to the Corporate Debtor and upon non-payment of those facilities, the Account 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 c....
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....efault of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. 43. It is, accordingly, hereby ordered as follows: - (a) The petition bearing CP (IB) 1807/MB/C-I/2018 filed by Bank of Baroda, the Financial Creditor, under section 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, ....