2022 (6) TMI 1217 - 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 - HELD THAT - As per the direction of this Tribunal, the learned PCS for the applicant filed the record of default of NeSL website, from which it is clear that the Corporate Debtor has committed default in repayment of its credit facilities availed from the Financial Creditor by way of various credit facilities sanctioned, granted and disbursed by the Applicant. The record produced by the applicant received from the Information Utility shows as Deemed to be Authenticated . The status of authentication as Deemed to be Authenticated is prima facie evidence for smooth admission under Section 7 of the IBC. It is relevant to note that Hon ble Supreme Court of India in the case of M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK ANR., 2017 (9) TMI 58 - SUPREME COURT , has laid down the guiding principles to admit or reject an application filed under Section 7 of the IBC. To admit an application filed under Section 7 of IBC, the Adjudicating Authority is to be satisfied that a default has occurred; that the Corporate Debtor is entitled to point out that default has not occurred in the sense that the debt , which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the Adjudicating Authority is satisfied that a default has occurred, the Application must be admitted unless it is incomplete. The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of the minimum amount stipulated under Section 4(1) of the IBC. Therefore, the debt and default stand established and there is no reason to deny the admission of the Petition. Petition admitted - moratorium declared.

Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) under the Insolvency and Bankruptcy Code, 2016.
2. Default in repayment of loans by the Corporate Debtor.
3. Rescheduling and additional term loan.
4. One Time Settlement (OTS) offers and failures.
5. Commercial insolvency and default as per Section 3 (12) of the Insolvency Bankruptcy Code, 2016.
6. Findings and legal precedents.
7. Appointment of Interim Resolution Professional (IRP).
8. Moratorium under Section 14 of the IBC.

Detailed Analysis:

1. Initiation of Corporate Insolvency Resolution Process (CIRP):
The application was filed by the Financial Creditor, Kerala State Industrial Development Corporation Limited, to initiate CIRP against the Corporate Debtor, Kumarakom Aqua Serene Private Limited, under the Insolvency and Bankruptcy Code, 2016.

2. Default in Repayment of Loans:
The Corporate Debtor availed a term loan of Rs. 496.90 Lakh for setting up a resort and later an additional term loan of Rs. 298.00 Lakh. Despite various rescheduling and concessions, the Corporate Debtor defaulted in repaying the loans along with the interest.

3. Rescheduling and Additional Term Loan:
The original term loan was rescheduled to be paid in 20 equal quarterly installments starting April 2014. An additional term loan was sanctioned to meet the project cost overrun. Despite these measures, the Corporate Debtor failed to meet the repayment obligations.

4. One Time Settlement (OTS) Offers and Failures:
The Corporate Debtor approached the Financial Creditor for settling the loan through OTS under the COVID Amnesty Scheme. Two OTS offers were sanctioned but the Corporate Debtor failed to remit the required amounts within the stipulated time frames, leading to the cancellation of the OTS offers.

5. Commercial Insolvency and Default:
The Corporate Debtor was found to be commercially insolvent and at a commercial standstill, having committed a 'default' as per Section 3 (12) of the Insolvency Bankruptcy Code, 2016. The outstanding default amount was Rs. 20,81,37,531/-.

6. Findings and Legal Precedents:
The Tribunal referred to the Supreme Court's guiding principles in Innoventive Industries Ltd. v. ICICI Bank and Swiss Ribbons (P) Ltd. v. Union of India. It was noted that the satisfaction of a default occurrence is crucial for admitting an application under Section 7 of the IBC. The Tribunal found that the Corporate Debtor had indeed defaulted based on the records from the Information Utility.

7. Appointment of Interim Resolution Professional (IRP):
The proposed IRP, Mr. Francis Mathew, did not produce the required Authorisation for Assignment (AFA). Therefore, Mr. Embrammadam Padmanabhan Madhusudhanan was appointed as the IRP to carry out the functions as per the IBC regulations.

8. Moratorium under Section 14 of the IBC:
A moratorium was declared with immediate effect, prohibiting the institution or continuation of suits, transferring or disposing of assets, and recovery of property by owners or lessors. The supply of essential goods or services to the Corporate Debtor was to continue uninterrupted during the moratorium period.

Conclusion:
The application by the Financial Creditor was complete and demonstrated that the Corporate Debtor was in default. The CIRP was initiated, and a moratorium was imposed to facilitate the resolution process. The IRP was appointed to manage the affairs of the Corporate Debtor during the CIRP period.

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