This petition is filed by Corporation Bank, a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (for brevity ‘Financial Creditor’) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short hereinafter to be referred to as the ‘Code’) read with rule 4 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity ‘the Rules) for initiating the insolvency resolution process against the Respondent, a company registered under the Companies Act, 1956 with its Registered Office at Sohna, Gurgaon, in the state of Haryana having defaulted in making payment of the ‘financial debt’. The matter, therefore, falls within the territorial jurisdiction of this Tribunal.

2. This application has been filed through Mr. Raveesha Nayak B.C., Assistant General Manager of the ‘Financial Creditor’ and presently the Branch Head of the ‘Financial Creditor’ at Delhi. The Bank has passed a circular resolution dated 24.06.2017 (Annexure-B) authorising the General Manager and a Deputy General Manager to execute Special Power of Attorney dated 26.06.2017 in favour of the Branch Head(s)/Branch Manager(s) to initiate Corporate Insolvency Resolution process under the Code'. The Special Power of Attorney in favour of Mr. Raveesha Nayak B.C. aforesaid is part of Annexure-B.

3. The ‘Financial Creditor’ has filed application in Form No. 1 of the rules as prescribed under Rule 4(1) of the Rules and the contents of the application are supported by the affidavit of Mr. Raveesha Nayak B.C. aforesaid. This application has been filed in terms of format which is in V parts for providing the necessary information.

4. Under sub-rule (3) of rule 4 of the Rules, the petitioner is required to despatch copy of the application filed before the Adjudicating Authority, by Registered or Speed Post at the Registered Office of the ‘Corporate Debtor’. The delivery compliance was admittedly made on 30.06.2017. The petitioner sent the application with annexures at the registered office of the ‘Corporate Debtor’ by Speed Post on 28.06.2017 and the original postal receipt affixed on the index of the paper book. Mr. Raveesha Nayak B.C. the Authorised Representative of the ‘Financial Creditor’ filed his affidavit dated 14.07.2017 stating therein that the same was delivered at the registered office of the ‘Corporate Debtor’ on 30.06.2017 as per the track report Annexure ‘A’ attached with this affidavit. The matter was listed for the first time before this Tribunal on 10.07.2017. Having heard the learned counsel for petitioner, it was noticed that Form No. 2, the written communication submitted by the Interim Resolution Professional was not in the proper format inasmuch as Clause vi did not contain complete particulars. Notice of the defect was issued to the petitioner and the learned counsel accepted notice of this defect. In compliance thereto, learned counsel of the petitioner has filed fresh written communication of the proposed Interim Resolution Professional namely, Dinkar Tiruvannadapuram Venkatasubramanian in Form No. 2 which is found to be in order. This communication is also accompanied with the Certificate of Registration dated 27.01.2017 issued by the IBBI in the name of Mr. Subramanian.

5. The name of the Interim Resolution Professional Mr. Dinkar Tiruvannadapuram Venkatasubramanian was proposed at Part-III of the Form No. 1 and he is registered with the Insolvency and Bankruptcy Board of India with Registration No. IBBI/IPA-001/IP-P00003/2016-2017/10011.

6. When the matter was listed on 10.07.2017 notice of this petition was directed to be issued to the respondent for 20.07.2017 at its Registered Office and the petitioner was directed to file affidavit of service of the notice. In compliance thereto, Mr. Raveesha Nayak B.C., the authorised representative of the petitioner - financial creditor filed affidavit dated 17.07.2017 stating about the aforesaid compliance. Along with this affidavit, the postal receipt dated 15.7.2017 of the despatch of the notice by Speed Post was also annexed.

7. It would be pertinent to refer to the affidavit dated 19.07.2017 sworn-in by Mr. Sumit Jain, Advocate for the petitioner wherein it is further stated in pursuance of the order dated 10.07.2017, the notice to the respondent was collected on 11.07.2017, and the same was handed over and served ‘dasti’ on 13.07.2017 along with copy of the application with the annexures at the registered office of the ‘Corporate Debtor’. This is further testified in the affidavit dated 14.07.2017 of Mr. Raveesh Nayak B.C. and copy of notice served ‘dasti’ on 13.7.2017 is attached as Annexure ‘C’ with this affidavit.

8. On 20.07.2017 appearance was made by Mr. Rohit Khanna, Advocate for the respondent who submitted that Power of Attorney with the resolution of the Board of Directors of the ‘Corporate Debtor’ would be filed in the Registry during the course of the day. However, time was requested to file objections, if any to the instant petition. It was submitted by learned counsel Mr. Puneed Singh Bindra, Advocate that he had filed the Power of Attorney for the respondent - corporate debtor, which was executed by Mr. Rajiv Raj Kumar, Company Secretary on behalf of the company and attached copy of the Board resolution dated 11.02.2016. This resolution authorises Mr. Rajeev Raj Kumar, Company Secretary to represent the company before any Court of Law or Tribunal or any other forum in the matters and litigation of the company and to do all the necessary acts for the progress of the case.

9. The respondent - corporate debtor has filed response to this petition by way of affidavit of Mr. Rajeev Raj Kumar along with latest resolution of the Board of Directors of the respondent company dated 22.07.2017 and the resolution reads as under:—

“Resolved that Mr. John Ernest Flintham, President (Operations) of the Company, Mr. Sanjiv Bhasin, President (Corporate) of the company and Mr. Rajeev Raj Kumar, Company Secretary of the company, be and is hereby appointed as an Authorised Representative of the Company to appear, sign, verify, declare, affirm, make, present, submit and file all necessary notices, plaints, petitions, written statements, affidavits, undertakings, vakalatnamas, declarations, Appeals, Revisions, applications, statements, complaints, papers and documents and all proceedings and matters in connection with any suit(s) or proceeding(s) filed by or against the Company before National Company Law Tribunal (NCLT) w.r.t. company falling under the Insolvency and Bankruptcy Code, 2016 (IBC Code) on behalf of the Company.

Resolved further that Mr. John Ernest Flintham, President (Operations) of the company, Mr. Sanjiv Bhasin, President (Corporate) of the company and Mr. Rajeev Raj Kumar, Company Secretary of the company be and is hereby also authorised to nominate, appoint and engage advocates, solicitors, counsel or other professionals and retainers; and to do all such acts, things, deeds as may be necessary or proper to carry out the purposes mentioned hereinbefore.”

10. Mr. Puneet Singh Bindra, Advocate submitted that the Board Meeting was held on 22.07.2017 in order to give specific authority in respect of instant case filed under the Insolvency and Bankruptcy Code and on the basis of the said decision, the affidavit of Mr. Rajeev Raj Kumar was filed by the company. The resolution of the Board does not say in so many words that the three persons mentioned therein are jointly and/or severally authorised to represent the company but the intent of the resolution seems to be so as rightly submitted by the learned counsel for the parties. In any case, the Adjudicating Authority is to see that application filed before it by the Financial Creditor is complete in all respects and there is no defect so that the application is admitted. The basic requirement was to comply with the principles of natural justice and to grant opportunity to the Corporate Debtor to file objections/response having been served notice of hearing. In this case, the Corporate Debtor was served with the copy of the petition at its Registered Office not only on the filing of the instant petition, but also the notice of the date of hearing.

11. In the response filed by the respondent - Corporate Debtor, it is stated in categorical terms that the respondent does not oppose the appointment of the Interim Resolution Professional and therefore, the objections are not to be filed on merits. The Corporate Debtor, however, has brought the following facts in the response for placing the same before the Tribunal:—

“a) The Corporate Debtor was under the overall supervision of the Joint Lenders Forum constituting of various Banks in terms of the Guidelines providing Framework for Revitalising Distressed Assets in the Economy (RBI Guidelines).

b) On 20 April 2017, the Monitoring Committee and the Joint Lender Forum lead by its lead banker IDBI Bank has appointed IDBI Capital Markets & Securities Limited (IBDI Capital) and the SBI Capital Markets Limited (SBI Cap) as the Joint Advisor for sale of controlling equity stake in the Corporate Debtor leading to the ‘change in management outside SDR’ and run the open bid process. A copy of the said appointment letter is annexed hereto as Annexure R1 (Colly).

c) On 21 April 2017 the Corporate Debtor has also agreed to the appointment of the IDBI Capital and SBI Cap as its Advosors.

d) SBI Cap and IDBI Cap having been appointed to identify investor(s) for acquisition of securities in Corporate Debtor or/and its affiliate companies, in fact, have also advertised the invitation calling for expression of interests from investors with adequate financial capability for acquisition of securities in the Corporate Debtor. A copy of the said advertisements is annexed hereto as Annexure R2.”

Copy of this response was also sent to learned counsel of the petitioner.

12. I have heard the learned counsel for petitioner and Ld. Senior Counsel for the respondent - Corporate Debtor and have perused the records with their able assistance. Having perused the particulars given in Form No. 1 as prescribed under rule 4(1) of the ‘Rules’, the application is found complete in all respects and no defect has been pointed out by the respondent. The respondent - Corporate Debtor was incorporated on 03.10.1985 in the name and style of A.M. Metal Cast Limited. Its name was later changed to Amtek Auto Limited and a fresh Certificate of Incorporation was issued dated 12.10.1987. Its Registered Office is at Sohna, Gurgaon in the state of Haryana.

13. The amount of debt granted by the petitioner - Financial Creditor to the respondent - Corporate Debtor is Rs. 841,70,00,000/- The sanction letters approving the grant of loan facilities are annexed at Annexure A-3 and at Annexure-4. The loan was granted on the basis of Working Capital Consortium Agreement dated 17.05.2014. There is a supplemental Working Capital Consortium Agreement dated 06.09.2016, Memorandum of Agreement for Term Loans dated 28.12.2015 and Memorandum of Agreement for Term Loans dated 21.01.2016. The copies of these agreements are at Annexure-7 (Colly).

14. It is further stated that facilities availed by the respondent from the Financial Creditor are overdue and the default has been committed by the respondent for which default notices were sent. The facilities were recalled by the petitioner Bank by recall notice dated 17.06.2017 along with the corrigendum dated 26.06.2017 copies of which are at Annexure-5 (Colly).

15. Petitioner has detailed the date of default, amount in default in respect of all the loans detailed as two Term Loans, WCDL and Cash Credit Limit. It is stated that total amount due as on 17.06.2017 is as under:—

1. Rs. 59,75,41,373/- in respect of Term Loan is Rs. 57 crores;

2. Rs. 11,22,00,338/- in respect of Term Loan of Rs. 10.41 crores;

3. Rs. 380,14,47,535/- in respect of WCDL of Rs. 365 crores; and

4. Rs. 3,72,88,49,240/- in respect of Cash Credit of Rs. 365 crores.

16. The petitioner Bank has also given particulars of securities held, date of creation and the estimated value in full details, apart from the first pari passu charge.

17. Under sub-section (3) of Section 7 of the ‘Code’, the ‘Financial Creditor’ has to furnish along with the application—

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.

18. Sub-section (4) of Section 7 of the ‘Code’ further says that the Adjudicating Authority shall within 14 days ascertain the existence of any default from the record of information utility or on the basis of other evidence furnished by the Financial Creditor.

19. The information utility has not yet been constituted, but there is abundant evidence on record showing the default which the respondent - Corporate Debtor has committed. This is basically in the nature of the loan agreements, the sanction letters, the security documents and above all, the copies of the accounts statement of the Corporate Debtor in respect of each of the loan duly certified in accordance with The Banker's Book of Evidence Act, 1891. These statements of accounts are at Annexure-9A (Colly) and are admissible as such. The total amount of default as per above particulars comes to Rs. 824,00,38,486/-. The certificate issued on these statements of different accounts are to the effect that these accounts consist of print-outs and electronic form of data stored in a floppy, disc, tape or any other electromagnetic data storage device, a printout of such entry or a copy of such printout together with such statements certified in accordance with the provisions of Banker's Books Evidence Act, 1891.

20. The petitioner has also relied upon the record available with the Central Repository of Information on Large Credits as at Annexure-8. There is in fact no dispute to resist the plea that the respondent-corporate debtor has committed default and rather the respondent has not opposed admission of application and appointment of Interim Resolution Professional.

21. The learned Senior Counsel for respondent has vehemently contended that since ‘Corporate Debtor’ and lenders have made considerable progress to identify investors and certain investors have already expressed their interest in acquiring certain stakes of the ‘Corporate Debtor’, the Tribunal may consider that a recommendation be made to the Interim Resolution Professional in the nature of an advisory that he may proceed with the resolution process taking into consideration the advance stage of restructuring of the ‘Corporate Debtor’. I am of the clear view that the legislature itself has provided for procedure which the Interim Resolution Professional or Resolution Professional, as the case may be has to follow in accordance with the provisions of the ‘Code’, Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and the Rules under which the Insolvency Professional has to be bound. His role as a Resolution Professional cannot be restricted or curtailed by the Adjudicating Authority by making such observations or issuing certain specific directions.

22. In view of the above, the instant petition deserves to be admitted. Learned counsel for petitioner however contended that apart from the specific directions which can be issued under section 14 of the ‘Code’, it would be pertinent that a specific direction may also to be issued so that the value of shares and assets of the Corporate Debtor are not dissipated. It is further contended that there may be even earlier authorisation by the ‘Corporate Debtor’. I find no force in above contention because the legislature itself provided for various directions with regard to the moratorium which the Adjudicating Authority has to declare. The aforesaid apprehension raised by the learned counsel for petitioner is otherwise covered in subclause (b) of Section 14(1) of the ‘Code’. To add anything to the provisions of law is not required at this stage.

23. In view of the above, the instant petition is admitted declaring moratorium prohibiting all of the following, namely:

a) the institution of suits or continuation or pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority;

b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein;

c) 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 Act, 2002 (54 of 2002);

d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.

24. It is further directed that the supply of essential goods or services to the Corporate Debtor as specified by the Insolvency and Bankruptcy Board of India shall not be terminated or suspended or interrupted during the moratorium period except for those transactions as may be notified by the Central Government in terms of Section 14(2) of the ‘Code’. The moratorium shall take effect from today i.e. 24.07.2017 till the completion of Corporate Insolvency Process.

25. The matter is adjourned to 27.07.2017 for passing formal order of appointment of Interim Insolvency Resolution Professional and further directions.