Jinan K R, Member - (1.) M/S. Edelweiss Asset Reconstruction (Financial Creditor) filed this petition under Section 7 of the Insolvency and Bankruptcy Code , 2016 ( In short I& B code,2016) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule,2016 for the purpose of initiating corporate insolvency resolution process against the respondent (Corporate Debtor) M/S. Jalan Intercontinental Hotels Pvt.Ltd. The Corporate Debtor originally availed various credit facilities by way of financial assistance against various assets creating security interests in favour of SBI of India, Commercial Branch,24, Park Street, Kolkata-700016. The State Bank of India assigned the debt in favour of the petitioner. Brief facts narrated by the petitioner in the petition is the following
(2.) The Corporate Debtor has availed various credit facilities from the State Bank of India. SBI granted credit facilities of Term Loan for an overall limit of Rs. 61,000,00,00/- in June 2008. In July 2010, it enhanced credit facility of Rs. 70,4400,000/- and further enhanced credit facility to Rs. 73,63,00000/- in the month of January 2014. The total amount of debt granted by the SBI in favour of the Corporate Debtor is shown in Annexure -C (Pg. 17) The petitioner contends that the corporate debtor failed to repay the loan amount and committed default in repayment as on 31.3.2014. The amount of default according to the petitioner as on 31.3.2014 is Rs. 127,0,368,412/-. A computation statement of the amount in default is shown in Annexure - D at (Pg. 18 ) . Since the Corporate Debtor failed to repay the Loan Amount a demand notice under section 13(2) of the Securitisation Act, 2016 was issued to the respondent by SBI on 1.8.2014. The corporate debtor by availing the credit facilities also executed hypothecation agreements as shown in Annexure F to G (Pg. 19-56) , Memorandum of Deposit of Title Deeds (Annexure H) , Supplement Memorandum of Entry of Mortgage of Deposit of Title Deeds (Annexure- I Pg 59,60) , Supplement of Memorandum of Entry of Mortgage of Deposit of Title Deeds (Annexure - J Pg. 61-62) , Copy of the Form CHG-I and charge in respect of creation of charge and modification in favour of the applicant. (Annexure-K Pg. 63-68 ) and Sanction letter dated 14.01.2008 issued by SBI in respect of credit facility (Annexure-K Pg.69-77) . The petitioner also produced a statement of account certified by the bank in accordance with Banker's Book Evidence Act. The said statement of account is Annexure-Y, at Pg. 223-278. The petitioner further contends that the corporate debtor admitting the default of the repayment of the amount made a request to State Bank of India for availing one time settlement scheme expressing its intention to settle the account outstanding in its name at Rs. 66,00,000,00/-and that Letter is produced and marked as Annexure-Z at Pg. 279 and another letter dated 15.9.2014 requesting for settlement under one time settlement scheme and that letter is marked as Annexure-AA at Pg. 280 . To prove that SBI assigned the debt in favour of the Petitioner produced a copy of the assignment deed dated 26.11.2014. The copy of said assignment deed is Annexure-CC at Pg 236-238. The petitioner further contends that the debt due to the applicant is admitted by the corporate debtor in their financial statement for the year ended 31.3.2015 and to prove the same the petitioner produced an extract of Annual Report/ Financial Statement as Annexure-DD at Pg. 339-340, The Corporate Debtor also addressed to the petitioner by way of a letter dated 9.10.2015 expressing its intention to settle the account for an amount of Rs. 85 crores. The letter is produced and marked as Annexure-EE at Pg.341. One another letter dated 28.09.2016 was also send by the corporate debtor to the petitioner expressing their intention to one-time settlement by offering Rs. 86 crores. That letter is produced and marked as Annexure-FF atPg. 342. Vide letter dated 26.10.2016 the corporate debtor again made a request to the petitioner offering Rs. 89 crores for enabling them to settle the account outstanding in their name. That Letter is produced and marked as Annexure-GG, P. 343. The Petitioner further submits that consent of Interim Resolution Professional was obtained by the Petitioner and it is produced along with the petition. The written communication by the Interim Resolution Professional is also produced by the Petitioner and it is shown at Pg.344-357. Upon the above-said contentions, Petitioner prays for initiating corporate insolvency resolution process against the corporate debtor.
(3.) In reply to the contentions raised by the petitioner, the respondent corporate debtor raised the following contentions. The petition is not maintainable. The petitioner suppressed material facts. This Tribunal has no jurisdiction to entertain this petition. The Petitioner has no locus standi to file the application since the assignment in favour of the petitioner by the SBI is under challenge before the Debt Recovery Tribunal-Ill, Kolkata. Mr. Meghraj Deshmukh has no authority to initiate a proceeding under the I &B Code for want of specific authority. By taking steps under section 13 (4) of the SARFAESI Act, 2002 and taking possession of secured assets of the respondent petitioner is barred from initiating proceedings before the HonTDle Tribunal. Against the order of taking physical possession by District Magistrate, the corporate debtor preferred an appeal as SA. 551 of 2016 before the DRT under section 17(1) of the said Act. The petitioner also not send any demand notice to the respondent Corporate Debtor and therefore there is no default by the Corporate Debtor. One among the creditors of the respondent that is Dhanlaxmi Bank has filed a petition under Section 433, 434 and 439 of the Companies Act before the Hon'ble High Court, Kolkata and the same has been numbered as C.P No. 588 of 2015. The pendency of the said petition also ousts the jurisdiction of this Hon'ble Tribunal in entertaining the instant petition filed by the petitioner. In one another case No. C.P 803 of 2013, the Hon'ble High Court of Kolkata passed an order of winding up against the respondent and that order was confirmed by Hon'ble Division Bench in appeal No. 480 of 2014. The copies of above-said order are produced by the respondent and marked as Annexure-D. The State Bank of India who has granted credit facilities to the respondent committed serious lacunae and latches at the time of disbursement of credit facilities and therefore the credit facilities granted to the respondent could not be utilised successfully. The respondent further contends that the documents annexed to the petition is not at all proves the existence of the financial debt or any default of the respondent as alleged in the petition. Upon the aforesaid contentions, the respondent prays for rejection of the application with cost.;