2017 (12) TMI 1243 - Tri - Insolvency and Bankruptcy

Corporate insolvency process - Held that - The Corporate Insolvency Resolution Process is aimed to revive the Company. In case if no Resolution Plan is there or in case the Resolution Plan is not approved by this Adjudicating Authority, then all the Creditors can claim the amounts from the assets of the Corporate Debtor as per the provisions of the Insolvency Code. Therefore, the admission of the Petition is not going to cause any prejudice to any of the Financial Creditors and at best it may cause delay of about six months in recovering their debts which they can realize later on also. Moreover, the Petitioner furnished the required information as per sub-section (3) of Section 10. Therefore, the Application is complete. The material on record establish that the Corporate Debtor has committed default in payment of financial debts as well as operational debts. In view of the above discussion, this Petition is admitted under Section 10(4)(a) of the Code. The Petitioner proposed the name of CA Prem Laddha as Insolvency Resolution Professional . Hence, this Adjudicating Authority hereby appoint, CA Prem Laddha having address at 304, Abhijit-3, Above Pantaloon, Mithakhali, Law Garden Road, Ellisbridge, Ahmedabad with Registration No. IBBI/IPA-001/IP-P00060/2016-17/10138 as Interim Insolvency Resolution Professional under Section 13(l)(c) of the Code. The Interim Insolvency Resolution Professional is hereby directed to cause a public announcement of the initiation of Corporate Insolvency Resolution Process

Issues Involved:
1. Filing of Petition under Insolvency and Bankruptcy Code, 2016.
2. Disclosure of Financial and Operational Creditors.
3. Objections by Financial Creditors.
4. Pendency of Winding Up Proceedings.
5. Recovery Proceedings and Arbitration.
6. Appointment of Interim Resolution Professional.
7. Moratorium under Section 13(1)(a) of the IB Code.

Issue-wise Detailed Analysis:

1. Filing of Petition under Insolvency and Bankruptcy Code, 2016:
The Company, through a Board Resolution dated 21st April 2017, resolved to file a Petition under the Insolvency and Bankruptcy Code, 2016, before the National Company Law Tribunal for Resolution Process. This was further ratified in an Extraordinary General Body Meeting held on 24th May 2017, authorizing the Board of Directors to file the necessary Application. The Petitioner, the Whole-time Director, filed the Application to trigger Corporate Insolvency Resolution Process under Section 10 of the Code.

2. Disclosure of Financial and Operational Creditors:
The Petitioner disclosed that Respondents No. 1 to 5 are Financial Creditors apart from 131 Operational Creditors. The Corporate Debtor committed default to the extent of ?54,34,25,440.85 in respect of Financial Creditors and ?7,20,54,888.82 in respect of Operational Creditors. Detailed lists of creditors and amounts owed were provided.

3. Objections by Financial Creditors:
Kotak Mahindra Bank Ltd., Tata Capital Financial Services Ltd., and HDB Financial Services Ltd. raised objections. Kotak Mahindra Bank argued that it constituted 95% of the total debt and had obtained a Recovery Certificate from DRT-II, Ahmedabad, and was in the process of recovery. Tata Capital Financial Services Ltd. argued that the Petition was not maintainable due to the arbitration clause and ongoing arbitration proceedings.

4. Pendency of Winding Up Proceedings:
Kotak Mahindra Bank Ltd. raised an objection regarding the pendency of winding up proceedings before the Hon’ble High Court of Gujarat. However, it was found that the Company Petitions Nos. 388 and 389 of 2015 were disposed of as withdrawn, and no winding up proceeding was pending against the Corporate Debtor.

5. Recovery Proceedings and Arbitration:
It was settled that the pendency of proceedings under the SARFAESI Act, DRT, arbitration, or execution proceedings is not a ground for not commencing the Insolvency Resolution Process. Section 238 of the Code gives overriding effect over all other laws. The Corporate Debtor's default in repayment was established.

6. Appointment of Interim Resolution Professional:
The Petitioner proposed the name of CA Prem Laddha as the Interim Resolution Professional. The Adjudicating Authority appointed CA Prem Laddha as the Interim Insolvency Resolution Professional under Section 13(1)(c) of the Code.

7. Moratorium under Section 13(1)(a) of the IB Code:
The Adjudicating Authority ordered a moratorium under Section 13(1)(a) of the IB Code, prohibiting the institution or continuation of suits or proceedings against the corporate debtor, transferring or disposing of any assets, any action to foreclose or enforce security interest, and recovery of any property by an owner or lessor. The moratorium is not applicable to the supply of essential goods or services to the Corporate Debtor and comes into force from the date of the order till the completion of the Corporate Insolvency Resolution Process.

Conclusion:
The Petition was admitted under Section 10(4)(a) of the Code. The Interim Insolvency Resolution Professional was directed to cause a public announcement of the initiation of the Corporate Insolvency Resolution Process and call for submission of claims. The order of moratorium was enforced, and the Petition was disposed of accordingly with no order as to costs.

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