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TMI Blog2017 (10) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33 as the case may be. The matter is adjourned to 14.09.2017 for passing formal order to appoint Interim Resolution Professional with further directions. - CP NO. 209/2016 And RT CP (IB) NO. 58/CHD./2017 - - - Dated:- 4-9-2017 - MR. R.P. NAGRATH, J. For The Petitioner : Yash Pal Gupta, Adv. For The Respondent : Prateek Gupta, Adv. ORDER The company petition was filed against the Corporate Debtor in the Hon'ble High Court of Punjab Haryana under Sections 433 (e) and 434 of the Companies Act, 1956 for winding up of the company for its inability to pay the debt. The petition was filed in the Hon'ble High Court in November, 2016. While the matter was pending in the Hon'ble High Court, service of the respondent was not effected and therefore, in terms of Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016, this petition was transferred to the Tribunal. Relevant portion of rule 5 of these Rules as amended vide notification dated 29.06.2017 reads as under: 5. Transfer of Pending proceedings of Winding up on the ground of inability to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng been given within the time limited by the Rules, the application is to be considered under Section 7 of the Code. The respondent company was incorporated on 10.12.2004 with authorised share capital of ₹ 140,00,00,000.0 (rupees one hundred and forty crores only) and the paid up capital of ₹ 72,26,55,000/-. 3. The petitioner company was incorporated on 07.07.2008 and filed the company petition before the Hon'ble High Court on the basis of the resolution of the Board of Directors Annexure P-1 attached with the record of the Hon'ble High Court in the company petition. The petitioner has named Harish Taneja as the Interim Resolution Professional (IRP) with registration No. IBBI/IPA-002/IP-N00088/2017-18/10229, in order to comply with the requirement of clause (b) of sub-section (3) of Section 7 of the Code. The proposed IRP has also been given the written communication in Form No.2 at Annexure A-2, dated 01.06.2017 giving all the necessary particulars and the same is found to be in order. 4. The Respondent-Corporate Debtor is said to have taken advance of ₹ 10,00,000 from the petitioner on 10.11.2012, but did not return thereafter despite repeated dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Silver Ark Enterprises Pvt. Ltd. and Ashok Kumar Aggarwala etc. upto the year 2013. Those shareholders were in-charge of the respondent company. 8. On 18.02.2013 a Memorandum of Understanding (for short MOU) was entered into between the respondent company through its director Ashok Kumar Aggarwala on the one hand and M/s Jupiter Strips Pvt. Ltd. on the other, whereby the first party to the agreement agreed to sell its entire shareholding in the company to M/s Jupiter Strips Pvt. Ltd. for a total sale consideration of ₹ 8,70,00,000/-. The first party, as per the MOU had agreed to pay all the liabilities towards the bank, secured and unsecured loans to all the outsider creditors, creditors for expenses and labour and statutory liabilities. Copy of the MOU dated 18.02.2013 is at Annexure R-1. 9. In terms of the MOU dated 18.02.2013 the creditors of the respondent company including the petitioner are deemed to have paid their dues. In furtherance of the MOU, a share purchase agreement was executed on 06.12.2013 to reflect the final transfer of business to M/s Jupiter Strips Pvt. Ltd. The first party in this agreement are the erstwhile shareholders of the respondent and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e default rests on the documents on record relied upon by the petitioner. The amount was credited in the account of the Respondent-Corporate Debtor on 10.11.2012 by the petitioner as reflected in the statement of account of the petitioner and that of respondent maintained in the State Bank of India, which is part of Annexure P-3. The balance sheet Annexure P-4 also shows the name of the petitioner as one of the unsecured creditor to the tune of ₹ 10,00,000/- as on 5.12.2013. 16. Learned counsel for the respondent referred to paragraph 6 of the MOU, wherein the first party i.e. the then shareholders of respondent company agreed to pay all the existing liabilities towards the banks, secured and unsecured loans, all outsider creditors, creditors for expenses, labour and statutory liabilities such as ESI, EPF etc. and the certificates/letters to that effect should be handed over to the second party i.e. M/s Jupiter Strips Pvt. Ltd. The total sale consideration was fixed keeping in view the above factors, the value of entire business, the plot, shed, transformer and all other assets of the company. 17. The share purchase agreement was executed between all the shareholders of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 8,70,00,000/- (Rupees Eight Crore Seventy Lakh only). Further the First Party undertakes that there is no other Liability with any other Bank/financial institution. That the First Party shall close all the bank accounts in the name of the Company with all banks on 9th day of December, 2013 for the clearance of previous liabilities and unsecured loans, etc., and shall not operate any bank account thereafter. The First Party shall provide certificates and upto date statement from the bankers of the Company stating therein that banking account of the Company with them has been closed by the 9th day of December, 2013. The First Party also undertakes that it will not open any bank account in future also in the name of the COMPANY. The upto date Bank Statements of the Company as on 06.12.2013 is attached as Annexure IV. 21. Learned counsel for the petitioner, however, made the specific reference to clause 12 of the agreement at page 32 of the reply, wherein the first party i.e. the then shareholders of the Respondent- Corporate Debtor, to which the respondent is also a party, confirming the balance sheet as on 05.12.2013 to be true and correct, which, therefore, accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of a borrowing; (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause. The definition of the term has a very connotation and covers the transaction under which the petitioner advanced the amount and he has been described as 'unsecured creditor' in the balance sheet, which is acknowledged in the share purchase agreement itself, in which the respondent and Jupiter Strips Pvt. Ltd. are also the parties. 25. The other contention of the learned counsel for the respondent was that the instant petition is barred by limitation, as the amount was transferred in the name of the respondent company in 2012, whereas the company pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted and the moratorium is declared for prohibiting all of the following as provided in section 14(1) of the Code:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 30. It is further directed that the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. The provisions of sub-section (1) shall however not apply to such transactions as may be notified by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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