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TMI Blog2017 (8) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... lant: A.S. Prashanth, Amir Bhavani, Amir Ali, Bhuvan Arora, Varsha Banarjee and A.D. Gupta, Advocates For the Respondent: K.R. Raman, N. Sridevi, B. Srinivasa Aditya, Jyothi Rani, Y. Suryanarayana, Satish Karun, S.R. Srinivasa Rao, Deshpande Guru Prasad, P. Sri Harsha, M. Anil Kumar and B. Harinath Rao, Advocates ORDER Rajeswara Rao Vittanala, Member (J) 1. The present Company Petition bearing CP No. 50/10/HDB/2017 is filed by M/S. AMEYA LABORATORIES LIMITED (ALL) (petitioner/Corporate Debtor, U/s. 10 of Insolvency and Bankruptcy Code 2016 (IBC), by seeking to Initiate Corporate Insolvency Resolution Process under IBC 2016, in respect of AMEYA LABORATORIES LIMITED. 2. Brief facts, leading to the filing of present Company Petition, are as follows: 1) The Company was incorporated on 20.02.1996 as Anu's Laboratories Limited with Registration No. 01-23283 with the Registrar of Companies, Hyderabad, Andhra Pradesh. Subsequently, the name of the company was changed to AMEYA LABORATORIES LIMITED vide certificate of Incorporation, consequent upon change of name dated 16.09.2013 issued by Registrar of Companies, Hyderabad, Andhra Pradesh. 2) The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assets of the Respondent company; (v) For ad-interim and interim relief in terms of prayer (iii) and (iv) hereinabove; (vi) That cost for petition be provided for; 5) Accordingly, the Hon'ble High court, after considering the indebtedness of the petitioner Company, by an order dated 20th April, 2015, ordered the petitioner Company to be wind up by appointing official Liquidator attached to the Hon'ble High Court. 6) Aggrieved by said order of Hon'ble High Court, AMEYA LABORATORIES LIMITED, the petitioner, herein, has filed application No. 940 of 2015 in O.S.A. No. 35 of 2015 before Division of Hon'ble High Court, by inter-alia, seeking to grant stay of all further proceedings pursuant to winding up order passed on 20th April 2015 in OP No. 33 of 2013. After considering the issue, the Court passed an order dated 19th August 2015, which reads as follows: In view of the law declared by the Supreme Court in RISHSABH AGRO INDUSTRIES LTD., all proceedings on or after 02.07.2015 shall, in view of section 22 of the Act, be stayed. It is made clear that the stay would operate only from 02.07.2015 onwards, and all proceedings prior thereof shall remain i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in relation to the Credit Facilities granted by ING Vysya Bank, all securities, personal guarantees etc. Consequently, this Respondent stepped into the shoes of ING Vysya Bank Ltd. in so far as the credit Facilities granted by ING Vysya Bank Ltd. to the petitioner Company is concerned. e) It is further stated that they have conducted auction for the sale of Unit III at Vishakhapatnam under SARFAESI Act, 2002, Andhra Pradesh in January, 2016. A buyer approached for the purchase of Unit III and sale concluded on 25.07.2016, wherein the defendant was a confirming party to the sale under Private Treaty of SARFAESI Act, 2002. The property was registered in the name of the Buyer on 29.07.2016. The Promoter of Petitioner Mr. K. Hari Babu also informed the Bank in Joint Lenders Meeting dated 20th September 2016 and 16th December 2016 that he would be submitting a proposal for one-time settlement of all its dues to the Bank. However, the petitioner failed to come out with any such settlement so far. f) It is stated that since May, 2015, the representatives of this Respondent, IDBI Bank Ltd. the State Bank of India, and the Karur Vysya Bank Ltd. have been periodically meeting for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by the Petitioner, its account was classified as NPA as per the guidelines of the RBI, as such this Respondent Bank initiated SARFEASI proceedings against the Petitioner Company and on mortgaged properties. While the matter stood thus, the Petitioner Company by suppressing the material facts of initiating the recovery proceedings against the petitioner Company by filing above said O.A. No. 1432 OF 2014 before the Debt Recovery Tribunal at Hyderabad and initiation of the SARFEASI proceedings against it, has approached BIFR under the provision of the Sick Industrial Companies (Special Provisions) Act 1985 and it was registered as Case No. 83 of 2015. d. It is contented that stay orders dated 19th August, 2015 passed by the Hon'ble High Court at Hyderabad, cannot be understood that the winding up of Orders dated: 20-04-2015 passed by Hon'ble High Court in C.P. No. 33 of 2013 were set aside due to the fact that still the OSA filed by the Petitioner Company is pending before the Hon'ble High Court at Hyderabad. So the instant Company petition is not maintainable as per section 11(D) of the IBC 2016. Therefore, it is liable to be dismissed at the threshold without a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sels for the Respondents. I have also carefully gone through all the pleadings along with material papers filed in their support. 6. In view of above facts of case, the main issue arise for consideration in the present Company Petition is whether Company petition is maintainable or not; if so what is the relief, the Petitioner is entitled for. 7. As stated supra, the basic facts especially with regard to sanctioning of loans by various financial creditors, by default approaching BIFR, the Hon'ble High court, SARFAESI proceedings etc. are not in dispute. It is no doubt that the Petitioner, on abolition of SICA Act, can file the present petition purely on technical grounds. However, whether the petitioner is justified to maintain the petition under IBC is a serious issue to be considered in the instant petition. It is not in dispute that the Hon'ble High Court passed wind-up order for winding up of petitioner Company at the instance of Elder Pharmaceuticals Limited vide its order dated 20th April, 2015 as detailed supra. Aggrieved by this order, the petitioner Company has approached the Hon'ble Division Bench vide Application No. 940 of 15 in OSA No. 35 of 2015, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or malicious initiation of proceedings; Section 66 (Fraudulent trading or wrongful trading) etc., Section 11 of IBC also bar the following persons to initiate Corporate Insolvency process: a) a corporate debtor undergoing a corporate insolvency resolution process: or b) a corporate debtor having completed corporate insolvency resolution process twelve months preceding the date of making of the application; or c) a corporate debtor of financial creditor, who has violated any of the terms of resolution plan which was approved twelve months before the date of making an application under this chapter; or d) A corporate debtor in respect of whom a liquidation order has been made. 11. Since the petitioner Company, as stated supra, has already suffered Liquidation order passed by the Hon'ble High court which is still subsisting, the present petition is also not maintainable under section 11(d) of IBC, 2016, as extracted above. Apart from that, as stated supra, the Financial Creditors/Banks of company have already initiated several steps to recover their dues as explained by the Bank in their Affidavits. The filing of present Company Petition is nothing but gross ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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