Abhijit Deshmukh, Ex-Director Of ... vs Rajendra K. Bhutta, R.P. & Anr

Abhijit Deshmukh, Ex-Director of Maharashtra Shetkari Sugar Ltd. ...Appellant

Versus

Rajendra K. Bhutta, R.P. & Anr. ...Respondents

Present:

For Appellant : Ms. Vivya Nagpal and Mr. Umesh Pratap Singh, Advocates

For 1st Respondent: Ms. Avika Madhura and Mr. Ashish Verma, Advocates

ORDER

24.10.2018 This appeal has been preferred by Mr. Abhijit Deshmukh,

Director of Maharashtra Shetkari Sugar Ltd. (Corporate Debtor) against order

dated 30th August, 2018 passed by the Adjudicating Authority (National

Company Law Tribunal), Mumbai Bench, Mumbai whereby the application

under Section 7 of the Insolvency and Bankruptcy Code, 2016 filed by the Union

Bank of India (Financial Creditor) has been admitted, order of moratorium has

been passed and the Interim Resolution Professional has been appointed with

certain directions.

Learned counsel appearing on behalf of the appellant submits that in fact

there was a 'default' on the part of the 'financial creditor' who had paid the

amount in the year 2011 though it was applied in the year 2009. It is alleged 2

that the stand taken by the Bank that the Composite Deed of Mortgage and

Hypothecation Deed dated 12th January, 2011 and modified on 12th June, 2012

are not based on the record but are forged documents. However, it is accepted

that the said date modified is 18th October, 2012.

2. Learned counsel appearing on behalf of the appellant further submits that

the Bank originally agreed for modification of terms and conditions of repayment

and in spite of repeated requests they wrongly appropriated the same towards

payment about repayment of the amount in terms of the oral agreement on the

basis of written requests made. In fact there is a 'default' on the part of the

bank which had not passed appropriate order of modification of the schedule of

payment and if such modification would have been made, then there would have

been no default on the part of the 'corporate debtor'.

3. We have heard Ms. Vivya Nagpal, learned counsel appearing on behalf of

the appellant and Ms. Avika Madhura, learned counsel appearing on behalf of

the 'Resolution Professional' and perused the record. It is not in dispute that the

matter was earlier taken by the Bank under the provisions of SARFAESI Act and

the Debt Recovery Tribunal at Aurangabad who passed order on 5th July, 2017.

By the said order, the claim of the 'financial creditor' amount of

Rs.119,02,11,690/- with further interest therein @ 12.5% per annum were

passed. The ground taken by the appellant is that the said was an ex parte order

and cannot be decided in a petition by Adjudicating Authority while entertaining

the application under Section 7 of the I&B Code. It is also not in dispute that

the 'corporate debtor' was classified as 'non-performing asset' (NPA) on 24th

March, 2015 as per guidelines of the Reserve Bank of India and demanding a

sum of Rs.99,92,81,341/- plus applicable interest from April, 2015. How that

Company Appeal (AT) (Insolvency) No. 636 of 2018 3

amount has been calculated is not the question. It is not in dispute that there

is a 'debt' due to the 'financial creditor' from the 'corporate debtor', which is more

than Rupees One Lakh and there is 'default' on the part of the 'corporate debtor'

in payment. The application being complete, the Adjudicating Authority had no

other option but to admit the application. In this background we find no ground

to interfere with the order. The appeal is accordingly dismissed. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk/

Company Appeal (AT) (Insolvency) No. 636 of 2018