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TMI Blog2017 (11) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... is also complete in all respects as per provisions of section 9 of IBC and thus it is a fit case for admission. Therefore we have no hesitation to consider this petition under section 9 of IBC. Heard, Counsels for both the sides. Considering the facts and circumstances of the matter as discussed supra and we are also satisfied that there is no disciplinary proceedings pending against the proposed IRP. In the result, the Company Petition is admitted by exercising the powers conferred under section 9 of IBC, 2016. - C.P. (IB) NO. 39/7/HDB/2017 - - - Dated:- 29-8-2017 - MR. RAJESWARA RAO VITTANALA AND MR. RAVIKUMAR DURAISAMY, JJ. For The Petitioner : Deepak Bhattacharjee, Sr. Adv., V.K. Sajith and Dishit Bhattacharjee For The Respondent : Rajesh Bohra ORDER Ravikumar Duraisamy, Member (Technical) : The Application has been filed to initiate Corporate Insolvency Resolution Process in the matter of M/s. Sree Ramakrishna Alloys Limited under IBC, 2016. Brief facts of the present Company Petition are as follows:- 2. M/s. PEC Limited, Government of India Enterprise (hereinafter called as Petitioner/Financial Creditor) is a Company incorporated under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tstanding principal amount of approximately ₹ 8.00 Crores along with accumulated interest and all other dues. The Respondent committed that they would comply the above schedule without fail. 9. The Respondent again addressed another letter No. SRAL/VIZAG/PEC/2016-17, dated 07-11-2016 to the Petitioner by expressing their regret with regard to payment of outstanding dues as agreed earlier and thus request made to the Petitioner to bear with them for another two months i.e. till end of December 2016 to clear the all outstanding dues. 10. When the Respondent felled to clear the outstanding dues as agreed upon by them earlier, the Petitioner issued a letter No.PEC/VIZAG/SRKAL dated 24.11.2016 by advising them to remit the above amount of ₹ 10,51,68,319/- along with overdue interest by 9-12-2016, failing which the Petitioner shall proceed to take all legal actions including filing of FIRs with concerned police station, CBI, EOW and other agencies, in order to recover money due to the Petitioner. 11. When the Respondent failed to obey their own commitments to clear the outstanding dues, the Petitioner issued another letter No. PECA/VIZAG/SRAL, dated 14.12.2016 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal of the Director of Respondent Company who is present before the Adjudicating Authority/Court every time granted adjournments as mentioned above, specially on the ground that there are about 147 employees working in the Respondent Company, proposal of Respondent Company for loan is considered favourably by Lakshimi Vilas Bank. Once the loan/funds is released entire outstanding amount would be paid to Petitioner Company in one go. 20. In view of the above facts circumstances. Adjudicating Authority was also of the view that the issue will be settled amicably without going through the entire process of CIRP which would be a win a win situation for both Petitioner Respondent. 21. Though the matter was in progress before Adjudicating Authority, the Petitioner has approached the Hon ble NCLAT by filing Company Appeal (AT) (Insol.) No. 120 of 2017 in the order passed by Adjudicating Authority on 29-07-2017. The Hon ble NCLAT vide order dated 04-08-2017, disposed of the appeal by observing that the Adjudicating Authority will not grant further time to any of the parties and decide the case either way, there being a time frame given for admission or rejection. 22. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; (4) Section 3(6) defines Claims - means a. a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured; b. right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, unmatured, disputed, undisputed, secured or unsecured; (5) Section 7(5) Where the Adjudicating Authority is satisfied that: a. default is occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or b. default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te their claim on financial creditor. Inspite of advising the Petitioner to submit a brief write up to substantiate their position as financial creditor, Balance Sheets to analyse their position as financial creditor, petitioner has made available Balance Sheets to Adjudicating Authority only on the last date of hearing. Upon perusal of their Profit Loss A/c, Invoices raised on the corporate debtor dated 28-02-2014, it is noted that Tax Invoice includes VAT of 5%, Quantity, Rate per metric tonn etc. From Note No. 13 of the Annual Report as at 31-03-2016, Debtors secured against I.L.C. have been classified as Trade Receivables. Further it is also noted that an amount of ₹ 3746.59 crores have been shown as sale of products in Note No.17 under the Head Revenue from Operations. In view of the same, we are of prima facie view that the Petitioner comes under section 9 i.e. Operational Creditor. The Counsel for Respondent also did not object to consider the petition under section 9 of IBC. 28. In the Instant case, facts specific to the case, where the case is filed either under section 7 or 9 would not have much difference since the Petitioner Company has already demanded Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst 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 (54 of 2002); (d) The recovery of any Property by an owner or lessor where such property is occupied by or in the possession of Corporate Debtor; (e) This order of moratorium shall have effect from the date of communication of this order till completion of Corporate Insolvency Resolution Process (CIRP) or till passing an order for liquidation of Corporate Debtor under section 33, whichever is earlier; (f) Directed to cause a public announcement of the initiation of Corporate Insolvency Resolution Process immediately as prescribed under section 15(1) and (2) of Insolvency and Bankruptcy Code, 2016, on www.ibbi.gov.in ..... 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