Page 91 - IBC Orders us 7-CA Mukesh Mohan

Order Passed Under Sec 7
Hon’ble NCLT Principal Bench

"On behalf of 'Corporate Debtor' learned counsel has raised some other objections namely that there is

mismatch of the defaulted amount given in Form-1 and the affidavit filed on 07.06.2017. On a closer
scrutiny, we find that there is hardly any discrepancy. It is true that at various places, the amount
mentioned has been Rs. 82,37,29,049.33/-. However, in para 9 of the affidavit filed on 07.06.2017 it has

been explained that some discrepancy in calculation had occurred and the actual total amount is Rs.
1,09,32,72,312.86/-. We are not impressed with the objection raised by the learned counsel for the

'Corporate Debtor' for variety of reasons. Firstly, as an Adjudicating Authority we are not entrusted with
any function to determine the amount of default. Once the default has occurred involving rupees one lac
or more in terms of Section 4 of the Code one of the requirements is satisfied and secondly any objection

with regard to amount would be maintainable before the Committee of Creditors. Once default in terms of
Rule 3(12) of the Code is established and all other requirements are fulfilled the Insolvency Resolution
Process has to be triggered."

A perusal of the aforesaid para would show that by no stretch of imagination the National Company
Tribunal has been entrusted with the function to determine the amount of default. The only issue for us to

examine is whether in terms of Section 4 of IBC the amount of default is rupee one lac or more than rupee
one lac, than requirement stand satisfied.

37. The other arguments has also not impressed us that the adequate opportunity for restructuring in
terms of the policy of the RBI issued vide the press release dated 13.06.2017, master circular dated
01.07.2015, Timelines for Stressed Assets Resolution dated 05.05.2017 or framework for structuring of

Stressed Assets in the economy - guidelines in Joint Lender Forum and Corrective Action Plan (CAP)
dated 26.02.2014 as all such efforts are the part of external processes which are beyond the scope of the

Insolvency and Bankruptcy Code. It is imperative to observe that Insolvency is not equivalent to
liquidation or winding up. This involves restructuring, re-planning and facilitation of evolving a
resolution for the industry to survive. If the argument of Mr. Mukherjee is correct and the solution was

well in sight than there would not be any difficulty for the Creditors Committee with the assistance of the
Corporate Insolvency Resolution Professional to adopt a resolution plan in a time bound disciplined
manner under a Parliamentary Act which may be acceptable to all the stake holders. It is only on the

failure of a resolution that the liquidation process may have to be initiated in accordance with the
provisions of Section 33 of IBC. We may observe in the passing that issuance of direction by the RBI on
30.06.2017 cannot also be termed as illegal because there is adequate power conferred by the Banking

Regulation Act by amendment of Section 35 to issue directions to Banks being a Regulator entitled to do
so. Therefore, we are unable to persuade ourselves to accept the submission made by Mr. Mukherjee

learned senior counsel for the respondent.

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