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2017 (8) TMI 1471 - Tri - Insolvency and BankruptcyInitiating corporate insolvency resolution process - Whether Mr. Meghraj Deshmukh is having specific authorisation to initiate corporate insolvency process against corporate debtor M/S Jalan Intercontinental Hotels Pvt. Ltd under the I & B Code? - Held that - Mr. Meghraj Deshmukh has been given authority to file winding up petition before any court in India. That authority includes his authority to file insolvency resolution process under the code. Therefore, it appears to us that Mr. Meghraj Deshmukh is a duly constituted attorney to appear and file insolvency resolution process before this Tribunal. Accordingly, we hold that petitioner has got the authority to file a petition of this nature and that this petition is maintainable under law. This issue is answered accordingly. Petitioner as an assignee of the original creditor can file a petition of this nature and therefore this petition is maintainable. This issue is answered accordingly. Winding up petition was admitted and Official Liquidator was appointed. Being found that the winding up petition was admitted and Official Liquidator was appointed Hon ble NCLT Special Bench New Delhi dismissed the petition filed by Nowfloats Technologies Pvt. Ltd case. On the other hand, in M/s. Vasan Health Care Pvt. Ltd case the Hon ble High Court of Madras passed an interim stay of the operation of the order passed by NCLT and referred the question of law raised by it to a Division Bench. Similarly, the corporate debtor in the M/s/ Vasan Health Care Pvt. Ltd case preferred an appeal against the very same order of Hon ble NCLT, Madras Bench before the Hon ble National Company Law Appellate Tribunal, New Delhi. In the said decision cited above the Hon ble Appellate Tribunal observing the applicability of S.238 of the Code in the said case declined to entertain it because the corporate debtor already availed another remedy and with that observation, appellant is permitted to withdraw the appeal. In view of the above-said discussion, it appears to us that this Tribunal has got jurisdiction to entertain this petition under S.7 of the I&B code,2016 Respondent did not raise any dispute regarding the assignment of debt in favour of the petitioner herein by State Bank of India and showed its willingness to settle the liability. The petitioner succeeded in establishing its entitlement to recover the debt from the respondent. It has come out in evidence that respondent defaulted in repayment of the debt due to the petitioner. Therefore, the existence of default in repayment of loan amount received by the Respondent stand proved in the instant case. The application is found otherwise complete. The petitioner has proposed the name of Mr. Kuldeep Verma, an Insolvency Professional registered with the Indian Institution of Insolvency Professional of ICAI having registration no. IBBI/IPA-00/IP-P00014/2016-17/10038, 3, Jagabandhu Modak Road, Kolkata-700005 as interim resolution professional. His consent letter and written communication are produced along with the petition . The Insolvency Professional has certified that there are no disciplinary proceedings pending against him. Therefore, this petition is liable to be admitted. The proposal of appointment of IRP is approved and appointed to proceed as per the provisions to finalize me insolvency resolution process within the prescribed period.
Issues Involved:
1. Authorization of Mr. Meghraj Deshmukh to initiate the corporate insolvency process. 2. Petitioner's right to file the petition as an assignee of SBI. 3. Jurisdiction of the Tribunal in light of parallel proceedings. 4. Admissibility of the petition. Issue-wise Detailed Analysis: Issue No. 1: Authorization of Mr. Meghraj Deshmukh to initiate the corporate insolvency process The Tribunal examined whether Mr. Meghraj Deshmukh had the specific authorization to initiate the corporate insolvency process against the corporate debtor. The respondent argued that the Board Resolution did not reflect authority for Mr. Deshmukh to file the petition and that the affidavit was prepared for NCLT, Bengaluru Bench. The Tribunal allowed the petitioner to file a supplementary affidavit to correct the cause title, which was duly done. The Board Resolution dated 08.02.2017 authorized Mr. Deshmukh to represent the company before quasi-judicial bodies and courts in India, which the Tribunal found sufficient. The Tribunal cited the NCLT, Chandigarh Bench in Macquarie Bank Ltd. Vs. Uttam Galva Metallics Ltd., holding that authorization to file winding-up petitions includes authority to file insolvency resolution processes. Therefore, the Tribunal concluded that Mr. Deshmukh was duly authorized to file the petition. Issue No. 2: Petitioner's right to file the petition as an assignee of SBI The Tribunal considered whether the petitioner, as an assignee of SBI, could file the petition under Section 7 of the Insolvency and Bankruptcy Code (I&B Code), 2016. The respondent contended that the assignment deed was under challenge before the Debt Recovery Tribunal (DRT), Kolkata. The Tribunal noted that Section 5(7) of the I&B Code includes assignees within the definition of a financial creditor. Despite the challenge to the assignment deed, the Tribunal found that the petitioner could file the petition based on the assignment deed, as the respondent had acknowledged the debt and expressed willingness to settle it in various letters. The Tribunal referenced several judgments, including Punjab National Bank and Ors. CP(IB)No.15/Chd/CHD/2017, Alchemist Asset Reconstruction Company Ltd. Vs. M/s Hotel Gaudavan Pvt. Ltd., and Union Bank Of India Vs. Guruashish Construction Pvt. Ltd., which supported the petitioner's right to file the petition despite pending proceedings before other forums. Issue No. 3: Jurisdiction of the Tribunal in light of parallel proceedings The Tribunal addressed whether it had jurisdiction to entertain the petition given the pending proceedings before the DRT and the High Court of Kolkata. The Tribunal reiterated that the pendency of proceedings under the SARFAESI Act before the DRT does not debar a financial creditor from filing an application under Section 7 of the I&B Code. The Tribunal examined the pending winding-up petitions before the High Court and concluded that the pendency of such petitions does not bar the Tribunal from entertaining an insolvency resolution petition. The Tribunal referenced Section 14(1) of the I&B Code, which imposes a moratorium on pending suits and proceedings against the corporate debtor upon the commencement of insolvency proceedings. The Tribunal also cited the Companies (Removal of Difficulties) Fourth Order, 2016, which mandates the transfer of certain proceedings to the Tribunal. The Tribunal found that no winding-up order had been passed nor an official liquidator appointed by the High Court, thus affirming its jurisdiction to entertain the petition. Issue No. 4: Admissibility of the petition The Tribunal considered whether the petition was liable to be admitted. The Tribunal found that the petition was filed in the required format and that Mr. Deshmukh was duly authorized to file it. The total amount claimed in default was ?127,03,68,411/-. The accounts of the corporate debtor had been declared as Non-Performing Assets (NPA), and the corporate debtor had admitted its liability in various letters, expressing willingness to settle the debt. The Tribunal noted that the petitioner had proposed the name of Mr. Kuldeep Verma as the Interim Resolution Professional (IRP), who had no disciplinary proceedings pending against him. Therefore, the Tribunal concluded that the petition was complete and the existence of default was established. The petition was admitted, and the IRP was appointed to proceed with the insolvency resolution process. Final Order: The Tribunal admitted the petition, approved the appointment of the IRP, and declared a moratorium in terms of Section 14 of the I&B Code. The IRP was directed to take necessary steps as per Sections 15, 17, and 18 of the Code and file a report within the statutory period. Public announcement as per Section 15 of the IBC, 2016 was to be made. Copies of the order were to be sent to both parties and the IRP. The petition was disposed of accordingly.
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