2017 (6) TMI 1314 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment - existence of debt and default - HELD THAT - The Corporate Debtor has enclosed a legal notice dated 27.12.2012 issued by Bank of India, Mumbai Mid-Corporate Branch, Bank of India Building, M.G. Road, Fort, Mumbai, claiming a sum of ₹ 4,93,72,342/-, which is a statutory notice u/s 433 434 of Companies Act 1956. The Corporate Debtor also enclosed a recall notice dated 02.07.2013 issued by Saraswat Co-op. Bank Ltd., Senapati Bapat Marg, Dadar, Mumbai requiring to pay a sum of ₹ 87,64,90,270/-. The Corporate Debtor says that the debt due to various financial institutions to the extent of ₹ 463.99 crores as disclosed in the petition is in default - this shows that there are debts which are in default. This Bench is of the view that the corporate debtor has cornmitted a default and the petition contains the particulars as required u/s 10 of the Code - Hence, this Bench hereby admits this petition, declaring moratorium with consequential directions. Petition admitted - moratorium declared.

Summary

Issues:
1. Initiation of Corporate Insolvency Resolution Process under Insolvency and Bankruptcy Code 2016.
2. Authority of the Board of Directors to file the necessary application.
3. Disclosure of debts owed to various Financial Creditors.
4. Supporting documents provided by the Corporate Debtor.
5. Admissibility of the petition and declaration of moratorium.

Issue 1: Initiation of Corporate Insolvency Resolution Process under Insolvency and Bankruptcy Code 2016:
The Company Petition was filed by the Corporate Debtor under Section 10 of the Insolvency and Bankruptcy Code 2016 for the initiation of the Corporate Insolvency Resolution Process. The history of the Debtor Company being before BIFR and AAIFR was noted, and the Petition was filed on 29.5.2017.

Issue 2: Authority of the Board of Directors to file the necessary application:
The Board of Directors of the Corporate Debtor, in a meeting held on 17.05.2017, authorized a Director to file the application for initiation of the Corporate Insolvency process under Section 10 of the Code. An interim resolution professional was also proposed by the Board.

Issue 3: Disclosure of debts owed to various Financial Creditors:
The Corporate Debtor disclosed owing a substantial sum to various Financial Creditors, supported by documents showing mortgages, charges, and sanction letters issued by Financial Institutions. Notices from banks claiming outstanding amounts were also enclosed, indicating debts in default.

Issue 4: Supporting documents provided by the Corporate Debtor:
The Corporate Debtor submitted audited financial statements, provisional financial statements, a list of assets and liabilities, details of creditors, members, personal guarantees, and an affidavit in support of the petition. This comprehensive documentation supported the claims and disclosures made in the petition.

Issue 5: Admissibility of the petition and declaration of moratorium:
After reviewing the petition and supporting documents, the Bench concluded that the Corporate Debtor had committed a default, meeting the requirements under Section 10 of the Code. Consequently, the Bench admitted the petition, declared a moratorium, and issued consequential directions to protect the interests of the Corporate Debtor and its stakeholders.

This judgment by the National Company Law Tribunal, Mumbai, involved the initiation of the Corporate Insolvency Resolution Process by a Corporate Debtor under the Insolvency and Bankruptcy Code 2016. The decision highlighted the authority of the Board of Directors to file the application, the disclosure of debts owed to Financial Creditors, the submission of supporting documents, and the admissibility of the petition with the declaration of a moratorium. The detailed analysis of each issue provides a comprehensive understanding of the Tribunal's decision and the legal implications surrounding the Corporate Insolvency Resolution Process.