M.K. Shrawat, Member - (1.) This Petition is filed on 19th June, 2017 invoking the provisions of Section 10 of Insolvency and Bankruptcy Code, 2016 (hereinafter "The Code") by a Corporate Debtor. This Application is filed by the Debtor to initiate Corporate Insolvency Resolution Process against itself.
(2.) Facts:- In brief facts stated in the Petition under consideration are that the Corporate Debtor is managed by three Promoter Directors, Mr. Arun Parasrampuria, Mrs. Sudha Berlia and Mr. Rajendra Padia, as listed at Column No. 2 of Form No. 6 filed under section 10 of The Code read with Rule 7 sub-rule (1) of Insolvency and Bankruptcy (Application to Adjudicating Authority), Rules 2016, The impugned Loan Facilities were initially provided by the Oriental Bank of Commerce, Nepeansea Road, Mumbai to the Debtor Company stated to be in the Trading Business of Medical Equipment used for diagnostic purpose. A legal notice dated 25th August, 2004 was issued under section 13(2) of the SARFAESI Act describing therein the nature of facilities reproduced below:- 2.1. In the said Notice it is intimated that in case of non-payment of aggregate sum of Rs. 3,99,79,703/- as on 30th June, 2004 together with interest of 16.5 % per annum the Recovery Proceedings shall be initiated against the Guarantors and the Debtor Company. The debt as acknowledged in the Form submitted by the Debtor amounted Rs.4,43,70,739/-. The said Financial Debt was admittedly incurred on 25th of August, 2004. It is worth to mention at this juncture that the Bank had granted Loan Facility against the mortgage of Personal Immoveable Properties of the Directors by executing Equitable Mortgage Deeds as well as Stock of Surgical Equipments. The List of the Properties covered under Equitable Mortgage are as under:- 2.2. Thereafter, vide "Deed of Assignment" dated 26th August, 2008 the debt was assigned to Asset Reconstruction Company of India Limited (ARCIL) Mumbai. Proceedings were initiated before Debt Recovery Tribunal, Mumbai (EXH. 185 and 188 in O.A. No. 89/2005) which was filed by Oriental Bank of Commerce and in those Proceedings brought ARCIL on the record as "Assignee" in its place. That Application was allowed on 12.08.2009 by the said Tribunal. A Writ in this regard is also on record (Writ Petition No. 650/2010) Order dated 9th June, 2010 filed by the Petitioner challenging Notice under Section 13(2) of the SARFAESI Act, however, the Hon'ble Court had not entertained the Petition on the ground that the impugned Notice being under SARFAESI Act is to be exhausted or to be challenged under the said Act. In addition to the above, the List of Documents submitted from the side of the Respondent Creditor contains a series of Orders mentioning exhaustive past history raised before several legal forums. In that series of Judgments the last one is dated 08.05.2017 passed by Debt Recovery Tribunal (S.A. No. 02/2011, Order in I.A. No. 659/2017) wherein it was recorded that the Debtor had agreed to make payment in part and the balance amount of Rupees Two Crores was to be paid within Six Weeks and the matter was listed for hearing before that Forum on 4th July, 2017. Relevant portion reproduced below:
(3.) Arguments OF DEBTOR:-Because of the reason that the matter was listed on 4th July 2017 before Debt Recovery Tribunal, hence the Petitioner had vehemently pleaded to decide the question of "Admission" of the Application filed under section 10 of The Code on or before the said date. Since an emergency was expressed, hence the Petition was listed on priority. The Learned Counsel of the Petitioner has pleaded that in a situation the Petition in question is "Admitted" under section 10 of The Code, the provisions of Section 14 of The Code shall come into operation as a result "Moratorium" shall commence. He has informed that Section 14 deals with "Moratorium" and prescribes that on commencement of the Insolvency the Moratorium is to be declared prohibiting any action under SARFAESI Act, 2002. He has also pleaded that all the properties should be dealt with under the provisions of The Code. For "Admission" placed reliance on the following decisions of NCLT as under:- (1) M/s. Raman ISPAT PVT. LTD. In Company Petition (IB) No. 23/Ald/2017 decided on 11th day of April, 2017 by N.C.L.T. Allahabad Bench. (2) Roofit Industries Ltd. in C.P. No. 1055/I & BP/NCLT/MAH/2017 decided on 28.06.2017 by N.C.L.T. Mumbai Bench.;