2021 (11) TMI 189 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Arbitration proceedings are pending between the Financial Creditor and the Corporate Debtor - maintainability of parallel proceedings - HELD THAT - In the present case though the Arbitration proceedings are pending between the Financial Creditor and the Corporate Debtor, the same cannot affect the proceedings under the IBC as these two legislations are separated and independent in its nature. Therefore, this Bench is of opinion that there is no any other reason to deny the insolvency of the Corporate Debtor and admit the Petition filed by the Financial Creditor. On perusal of the documents submitted by the Applicant, it is clear that financial debt amounting to more than ₹ 1,00,000/- is due and payable by the Corporate Debtor to the Applicant. There is default by the Corporate Debtor in payment of debt amount. Hence, the Application filed by the Financial Creditor is hereby admitted - the application is complete and has been filed under the proper form. The debt amount is more than Rupees One Lakh and default of the Corporate Debtor has been established and the application deserves to be admitted. Application admitted - moratorium declared.

Issues Involved:
1. Application under Section 7 of Insolvency & Bankruptcy Code, 2016.
2. Default and debt amount claimed by Financial Creditor.
3. Pending Arbitration Proceedings and their impact on IBC proceedings.
4. Admission of Corporate Insolvency Resolution Process (CIRP).
5. Appointment of Interim Resolution Professional (IRP).
6. Declaration of Moratorium under Section 14 of IBC.

Issue-wise Detailed Analysis:

1. Application under Section 7 of Insolvency & Bankruptcy Code, 2016:
The application was filed by Indiabulls Housing Finance Limited, the Financial Creditor, under Section 7 of the Insolvency & Bankruptcy Code, 2016, against Raghuleela Infraventures Private Limited, the Corporate Debtor, for initiating Corporate Insolvency Resolution Process (CIRP). The Financial Creditor claimed a total default amount of ?144,11,30,937, which includes ?133,02,26,498 payable without TDS and ?11,09,04,439 as TDS pending.

2. Default and debt amount claimed by Financial Creditor:
The Financial Creditor provided loan facilities amounting to ?283 crore to the Corporate Debtor, which were secured by various security documents. The Corporate Debtor failed to make timely payments towards the due EMIs as per the loan agreements. Despite issuing Loan Recall Notices and various communications, the Corporate Debtor did not pay the outstanding dues. The total aggregate amount due and payable by the Corporate Debtor as on 03.11.2020 was ?144,11,30,937.

3. Pending Arbitration Proceedings and their impact on IBC proceedings:
The Corporate Debtor argued that there was an Arbitration Proceeding pending before the Hon'ble Delhi High Court on the same subject matter, which was not disclosed by the Financial Creditor. The Corporate Debtor contended that the Petition under IBC was not maintainable due to the pending arbitration. However, the Financial Creditor submitted that the pending Arbitration Proceedings have no bearing on the IBC proceedings under Section 7 and that the two remedies are independent of each other.

4. Admission of Corporate Insolvency Resolution Process (CIRP):
The Tribunal observed that the Corporate Debtor did not deny the default or dispute the debt amount claimed by the Financial Creditor. It was noted that the pending Arbitration Proceedings do not impact the IBC proceedings. The Tribunal concluded that there was no reason to deny the insolvency of the Corporate Debtor and admitted the Petition filed by the Financial Creditor.

5. Appointment of Interim Resolution Professional (IRP):
The Applicant proposed the name of Ms. Sujata Chattopadhyay, a registered insolvency resolution professional, as the Interim Resolution Professional (IRP) to carry out the functions under the IBC. The Tribunal accepted this proposal and appointed Ms. Sujata Chattopadhyay as the IRP.

6. Declaration of Moratorium under Section 14 of IBC:
The Tribunal declared a moratorium under Section 14 of the IBC, prohibiting the institution or continuation of suits or proceedings against the Corporate Debtor, transferring or disposing of any assets, and any action to foreclose or recover any security interest. The supply of essential goods or services to the Corporate Debtor shall not be terminated during the moratorium period. The moratorium shall be effective from the date of the order until the completion of the CIRP or approval of the resolution plan or liquidation order.

Order:
The application filed under Section 7 of the IBC by Indiabulls Housing Finance Limited against Raghuleela Infraventures Private Limited was admitted. The Tribunal declared a moratorium and appointed Ms. Sujata Chattopadhyay as the Interim Resolution Professional. The Registry was directed to communicate the order to the Financial Creditor, the Corporate Debtor, and the IRP immediately.

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