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2021 (11) TMI 120 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - application will come in the purview of multiple proceeding with respect to the same debt or not? - Creditor-Debtor relationship between the Financial Creditor and Corporate Debtor herein - HELD THAT - It is seen that the defaults under the loan accounts are continuing defaults, and therefore, the objection of limitation would not be of any avail more so when the loan was recalled only in the year 2019 and the admission of such defaults was reduced in writing vide the Deed of settlement dated 04.09.2019. Suffice it to conclude that there is no substance even in the second ground urged by the Corporate Debtor regarding the maintainability of the application filed by the Financial Creditor under Section 7 of the Code on the ground of being barred by limitation. Hence, the contentions regarding maintainability/limitation will not stand for scrutiny and are to be rejected. Whether this application will come in the purview of multiple proceeding with respect to the same debt? - HELD THAT - The Corporate Debtor mentions that the Application cannot be maintained against M/s. Koyenco Autos Private Limited Private Limited, the Corporate Debtor/Co-borrower, for the same debt arising out of identical loan in IBA/25/KOB/2020, in the matter of M/s. Platino Classic Motors (India) Private Ltd. This Bench takes note of the contention and is of the view that the present application IBA/37/KOB/2020 has been filed by M/s. BMW India Financial Services Private Limited is only against Corporate Debtor herein i.e., Koyenco Autos Private Limited and not against M/s. Platino Classic Motors (India) Private Ltd. - Since this application has been filed by the Financial Creditor against the Co-borrower, M/s. Koyenco Autos Private Limited and not against M/s. Platino Classic Motors (India) Private Limited, there is no bar in admitting the present application against the Corporate Debtor. Whether there is a Creditor-Debtor relationship between the Financial Creditor and Corporate Debtor herein? - HELD THAT - From the records filed by both the parties we could find that there is a Creditor- Debtor relationship between the Financial Creditor and Corporate Debtor, since the Corporate Debtor admitted that they received money from the Financial Creditor through various documents produced before this Tribunal and the Corporate Debtor has no case that they have repaid the money received from the Financial Creditor. As there is a default in the payment of the financial debt, which has been confirmed by them in the counter affidavit that the Financial Creditor paid the money to the Corporate Debtor, this Tribunal is of the view that, the present application filed by the Financial Creditor satisfies all the definitions of Financial Creditor , Default and Financial Debt and qualifies for filing an application under Insolvency and Bankruptcy Code. By mentioning various technical snags the Corporate Debtor cannot wash its hands in repaying the amount borrowed, which is a financial debt owed by them. Hence, there is a Creditor-Debtor relationship with them. The documents produced on record prove the disbursement of various loan facilities granted by the Financial Creditor to the Corporate Debtor - the Corporate Debtor committed default in repayment of the loan amount to the Financial Creditor, and hence its Loan Account was declared as NPA. In the light of above facts and circumstances, the existence of debt and default is reasonably established by the Financial Creditor as a major constituent for admission of an application under Section 7(4) of the I B Code. The Application under Sub-Section (4) of Section 7 of I B Code, 2016 is complete in all respects - the application filed under Section 7 of the Insolvency and Bankruptcy Code for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor deserves to be admitted - application admitted - moratorium declared.
Issues Involved:
1. Maintainability of the application. 2. Multiple proceedings with respect to the same debt. 3. Creditor-Debtor relationship between the Financial Creditor and Corporate Debtor. Detailed Analysis: 1. Maintainability of the Application: The Tribunal examined whether the application filed under Section 7 of the Insolvency and Bankruptcy Code (IBC) was maintainable. Section 7 allows a financial creditor to initiate Corporate Insolvency Resolution Process (CIRP) against a corporate debtor. The Tribunal found that the Financial Creditor, BMW India Financial Services Private Limited, had entered into an Addendum Agreement with the Corporate Debtor, Koyenco Autos Private Limited, making the latter a co-borrower and thereby assuming all rights, interests, and liabilities of the original borrower, Platino Classic Motors India Private Limited. The Tribunal referred to the Supreme Court's decision in Laxmi Pat Surana vs. Union Bank of India & Anr., which upheld that a financial creditor can initiate resolution process against a corporate debtor whose liability is coextensive with that of the principal borrower. The Tribunal concluded that the defaults under the loan accounts were continuing, and the application was not barred by limitation. Thus, the application was maintainable. 2. Multiple Proceedings with Respect to the Same Debt: The Corporate Debtor argued that the application could not be maintained as insolvency proceedings were already initiated against Platino Classic Motors India Private Limited, the principal borrower. The Tribunal noted that the present application was filed only against Koyenco Autos Private Limited, the co-borrower, and not against Platino Classic Motors. The Tribunal found no bar in admitting the application against the Corporate Debtor, as it was a separate entity from Platino Classic Motors. The Tribunal emphasized that the application was specific to the Corporate Debtor and not a duplication of proceedings against Platino Classic Motors. 3. Creditor-Debtor Relationship: The Tribunal examined whether there was a creditor-debtor relationship between the Financial Creditor and the Corporate Debtor. The records showed that the Corporate Debtor had received money from the Financial Creditor and had not repaid it. The Tribunal noted that the Corporate Debtor had admitted to receiving funds through various documents and had not contested the repayment obligation. The Tribunal concluded that there was a clear creditor-debtor relationship, and the Corporate Debtor had defaulted on its financial debt. The Tribunal found that the application satisfied the definitions of "Financial Creditor," "Default," and "Financial Debt" under the IBC, and thus, the Financial Creditor was entitled to initiate CIRP. Order: The Tribunal admitted the application under Section 7 of the IBC and initiated CIRP against Koyenco Autos Private Limited. The Tribunal appointed Mr. Sankar P. Panicker as the Interim Resolution Professional (IRP) and directed the Financial Creditor to deposit ?2,00,000 with the IRP for expenses. The Tribunal enforced a moratorium as per Section 14 of the IBC, prohibiting any suits or asset transfers by the Corporate Debtor. The IRP was instructed to issue a public notice and invite claims, and the Corporate Debtor's management was vested in the IRP. The Tribunal dismissed the Corporate Debtor's application to refer the matter to arbitration, deeming it infructuous in light of the admission of the CIRP application. Conclusion: The Tribunal's judgment comprehensively addressed the maintainability of the application, the issue of multiple proceedings, and the creditor-debtor relationship, ultimately leading to the initiation of CIRP against the Corporate Debtor. The decision underscored the Financial Creditor's right to recover the outstanding debt and the Corporate Debtor's obligations under the IBC.
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