2019 (10) TMI 1517 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Financial Creditors - existence of debt and dispute or not - HELD THAT - The Financial Creditor has been able to make out a good case for initiation of CIRP against the Corporate Debtor. The financial creditor succeeds in proving that there is outstanding loan and default on the part of corporate debtor. The application is complete meeting all the requirement to be meted out u/s 7(5) (a) of the Code. The application filed by the Financial Creditor under Section 7 of the Insolvency Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, M/s Aeon Manufacturing Pvt. Ltd., is hereby admitted - Moratorium declared.

Summary

Issues: Application under Section 7 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor.

Analysis:
1. Financial Creditor's Submission: The Financial Creditor, Bank of India, filed an application under Section 7 of the Insolvency & Bankruptcy Code against the Corporate Debtor, M/s. Aeon Manufacturing Pvt. Ltd., for defaulting on a loan amount of Rs. 74,28,51,444.72. The Financial Creditor provided evidence of the loan, default, and securities created by the Corporate Debtor in favor of the Financial Creditor, including balance confirmation letters, financial statements, and the proposal of an Insolvency Resolution Professional.

2. Corporate Debtor's Defense: The Corporate Debtor argued that the application was not maintainable, as an upfront payment of Rs. 50 lakh was made towards a One Time Settlement (OTS) proposal, which was accepted by the Financial Creditor without objection. The Corporate Debtor claimed that the Financial Creditor was estopped from making further claims due to the OTS proposal being acted upon based on their conduct and dealings.

3. Authority to File Application: The Corporate Debtor questioned the authority of the Bank of India's authorized person to file the application, alleging a lack of board resolution support. However, the Financial Creditor provided documentation showing authorization by the General Manager of Bank of India and the Board resolution supporting the authorized person's filing of the application under the Insolvency & Bankruptcy Code.

4. Forensic Audit and Default Clarification: The Financial Creditor highlighted the necessity of a forensic audit for OTS proposals exceeding Rs. 50 crores. Despite pursuing the Corporate Debtor for clarifications on discrepancies found during the forensic audit, no satisfactory response was received, indicating a lack of cooperation from the Corporate Debtor in addressing the outstanding issues.

5. Judgment: After considering the submissions from both parties and reviewing the evidence on record, the Tribunal found in favor of the Financial Creditor. The Tribunal admitted the application for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, declared a moratorium, appointed an Interim Resolution Professional, and outlined further steps for the resolution process, including convening a meeting of the Committee of Creditors and identifying a prospective Resolution Applicant within a specified timeframe. The Tribunal directed the Registry to communicate the order to all relevant parties and scheduled a follow-up date for progress reporting.