H.P. Chaturvedi, Member - (1.) The applicant IDBI Limited (for brevity Financial Creditor) has filed the present petition u/s. 7 of the Insolvency & Bankruptcy Code, 2016 read [hereinafter referred to as "the Code") with Rule 4 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to initiate the Corporate Insolvency Resolution Process in respect of the respondent corporate debtor company M/s. Jaypee Infratech Ltd. The Brief facts of the present case are slated as under: (i) The applicant IDBI Bank Ltd. is a company within the meaning of the Companies Act, 2013 and a banking company within the meaning of the Banking Regulation Act, 1949 and having its registered office IDBI Tower. WTC Complex, Cuffe Parade, Colaba, Mumbai - 400 005, in the State of Maharashtra and a branch, inter alia, at IDBI Tower, 4th Floor, Plot No. C-7, G Block, Opp. NSE, Next to SBI, Bandra-Kurla Complex Bandra (East), Mumbai-400051, in the State of Maharashtra. (ii) It was incorporated on September 27, 2004 as a company within the meaning of the Companies Act, 2013 and further a banking company within the meaning of the Banking Regulation Act, 1949. (iii) The 'Corporate Debtor' has CIN No. L45203UP2007PLC033119. It was incorporated on April 5th, 2007. Its authorised share capital is Rs. 3000,00,00,000/- (Rupees Three Thousand Crore only) and the paid up share capital is Rs. 1388,93,34,970/- (Rupees One Thousand Three Hundred Eighty-Eight Crore Ninety-Three Lakh Thirty-Four Thousand Nine Hundred and Seventy). The aforesaid data concerning the Corporate Debtor is authenticated by master data available on the website of Ministry of Corporate Affairs. (iv) The 'Financial Creditor' has given all the details of financial debt as per the Code. In part-IV of the application, which is on a proforma prescribed under Rule-4 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code, the following details are given about the financial debts: a. In total the Financial Creditor has sanctioned four (4) loans aggregating to Rs. 4650,00,000/- (Rupees Four Thousand Six Hundred and Fifty Cores) and disbursed the entire said amount. b. An amount of Rs. 900,00,00,000/- (Rupees Nine Hundred Crore) was then sold to India Infrastructure Finance Company Limited, as per the Takeout Finance Agreement dated May 22, 2015, and by a Novation Deed to the Common Loan Agreement all rights and obligations in respect of the said amount were novated to India Infrastructure Finance Company Limited. The total debt, therefore granted to the Corporate Debtor was Rs. 3750,00,00,000/- (Rupees Three Thousand Seven Hundred and Fifty Crore). The tabulation of the four loans is as follows: The date of disbursement of loan under the Loan Agreement has been annexed the application as Exhibit-6. (v) The defaulted amount within the meaning of Section 3(12), i.e. the computation relating to the defaulted amount and days of default has been annexed by the Financial Creditor at Exhibit - 7. The total amount clue as on June 15, 2017 is Rs. 526,11,40,827/- (Rupees Five Hundred Twenty-Six Crore, Eleven Lakh, Forty Thousand. Fight Hundred Twenty-Seven), this includes the principal amount in default under the Rupee Term Loan - Tranche - II of the Common Loan Agreement which is Rs. 49,99,99,998/- (Rupees Forty-Nine Crore Ninety-Nine Lacs Ninety-Nine Thousand, Nine Hundred and Ninety-Fight). In addition to this, the default amount towards the overdue interest (including liquidated damages as default interest) amounts to Rs. 476,11,40,829/- (Rupees Four Hundred and Seventy-Six Crore Eleven Lacs Forty Thousand, Eight Hundred and Twenty-Nine). (vi) The Financial Creditor has provided particulars of financial debt documents, records and evidence of default. The Financial Creditor has provided details of the Security documents from Exhibit 8 to Exhibit 13 in Volume II - IV of the Application. The Security comprises the following: I. Deed of Hypothecation: The Unattested Deed of Hypothecation dated May 25, 2015 (the "Unattested Deed of Hypothecation") and the Amended and Restated Deed of Hypothecation dated February 6, 2016 (the "Amended and Restated Deed of Hypothecation") have been attested by the Corporate Debtor in favour of the Security Trustee. Following security has been created; a. A first charge on all the movables of the company, present and future; excluding movables which are forming part of the common infrastructural facilities of real estate development; b. A first charge on the corporate debtor company's book debts, receivables, on all bank account including but not limited to the Debt Service Reserve Account (DSRA), the Trust & Retention Account (TRA) where all the cash inflows from toll collection and sale proceeds of the real-estate shall be utilized in a manner & priority to be decided by the lender's agent/RTL lenders, commissions, revenues of whatsoever nature & wherever arising, intangibles including but not limited to goodwill, rights, undertaking and uncalled capital, both present and future; c. A first charge on or assignment of all rights, title, interest, benefits, claim and demands whatsoever of the Corporate Debtor in the concession agreement save and except in relation to portion of land which is developed/undeveloped and alienated by Corporate Debtor from time to time pursuant to sale agreement and project documents duly acknowledged and consented to be the relevant counter parties to such project documents, all as amended, varied or supplemented from time to time, statutory/non-statutory clearances & approvals obtained/to be obtained for the project; letter of credit, guarantee, performance bond, etc. provided by any party for the project; insurance contracts/insurance Proceeds pertaining to the project (other than those in respect of discharge of third party liability) and all benefits incidental to project activities. d. A first charge on the Debt Service Reserve Account (DSRA) for an amount equal to 1.5 times the principal and interest payment due for the ensuing quarter to the rupee term lenders. e. In support of the above the applicant bank has annexed copies of its Unattested Deed of Hypothecation, Amended and Re-Attested Deed of Hypothecation dated February 6, 2016 executed by the Corporate Debtor in favour of the Security Trustee as Exhibit-10 (Colly) of the present petition. II. Personal Guarantee: Shri Manoj Gaur the chairman cum managing director of the Company as being "Personal Guarantor" has further guaranteed the obligations of the Corporate Debtor under the Loan Agreements pursuant to the personal guarantee dated May 25, 2015. (the "Personal Guarantee") executed by the Personal Guarantor in favour of the Security Trustee. Copy of the Personal Guarantee has been annexed herewith as Exhibit-11. III. Indentures of Mortgage: Copies of Indentures of Mortgage have been annexed which is marked as forming part of Exhibit-12 of the application. IV. Pledge: Jaiprakash Associates Limited, a shareholder of the Corporate Debtor by way of a Deed of Pledge dated February 6, 2016 pledged 51% of the Corporate Debtor's total paid up share capital in favor of Security Trustee. A Copy of the Deed of pledge is annexed herewith as Exhibit-13 of present 1 & B Application. Estimated Value of the Aforementioned Security: Including 51% of the shares of the Corporate Debtor pledged as stated above and movable properties of the Corporate Debtor, the market value of the assets is estimated to be INR 17116,00,00,000/- (Rupees Seventeen Thousand One Hundred and Sixteen Crore only). The distress value of the assets is estimated to INR 14548,00,00,000/- (Rupees Fourteen Thousand Five Hundred and Forty-Eight Crore only). (vi) In support of the existing financial debts under default the Financial Creditor Applicant has annexed following documents giving particular of the amount and date of default: a) Copy of the audited Balance Sheet for the Financial year 2016-2017 of the Corporate Debtor acknowledging the indebtedness of the Corporate Debtor; b) Balance Confirmation acknowledging the indebtedness of the Corporate Debtor as on March 31, 2017. c) RBI directive No. DBR No. BP. IBC10/21.04.048/2016-2017 dated June 15, 2017 giving directions to the IDBI Bank Limited to initiate Insolvency Resolution Process under the provisions of the I & B Code, 2016. d) Report from the Central Repository on Information on Large Credits ("CRILC") date June 17, 2017. e) CIBIL Report, showing account of the Corporate Debtor as substandard from April 2016 - March 2017. f) Entries in Banker's Book in accordance with the Banker Books Evidence Act, 1891 as maintained by the IDBI Bank.
(2.) By perusal of the application filed by Financial creditor it appears to be found complete as being in conformity with the provision of Section 7 of the Code and Rules applicable. The provision of Section 7 of the Code reads as under: 7. Initiation of corporate insolvency resolution process by financial creditor. (1) A financial creditor either by itself or jointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. Explanation - For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. (2) The financial creditor shall make an application under sub-section (I) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with the application furnish-- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2) ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3). (5) Where the Adjudicating Authority is satisfied that-- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may by order, admit such application; or (b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order reject such application: Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5). (7) The Adjudicating Authority shall communicate-- (a) the order under clause (a) of sub-section (5) to the financial creditor and the corporate debtor; (b) the order under clause (b) of sub-section (5) to the financial creditor, within seven days of admission or rejection of such application, as the case may be.
(3.) From the perusal of documents annexed with the present petition, it is evident the default has occurred, that meets the requirement of Section 3(11) & (12) of the Code. Section 3(11) and 3(12) of the Code which reads as under: 3(11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt; 3(12) "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 repaid by the debtor or the corporate debtor, as the case may be;;