9911796707
TMI Blog2017 (8) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner Company has taken loans from various banks and a statement of loans and defaults are furnished below: 3) When the Petitioner Company was unable to pay Loans, and committed defaults to various Creditors, it has filed a Reference with BIFR U/S. 15(1) of the Sick Industrial Companies (Special Provision) Act, 1985, and the same was registered as Case No. 83 of 2005. While the Case was pending, the Government of India by Notification Dated 25/11/2016, the Sick Industrial Companies (Special Provision) repealed Act 2003, is issued making all proceedings or appeals of whatever nature pending before BIFR/AAIFR as abated w.e.f. 01/12/2016. Since said BIFR proceedings are pending, while the said repeal act came into force, the present Company Petition is filed under IBC 2016. 4) M/S. Elder Pharmaceuticals Limited (ELZENA), one of the Financial Creditor of the Petitioner company has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows: "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 in force. Needless to state that, this order shall not preclude the respondent-creditor from invoking the Jurisdiction of BIFR under the provisions of the Act". 7) While the matter stood thus, the petitioner has filed the present Petition by seeking to initiate CIRP under the provisions of IBC. 8) Kotak Mahindra Bank LTD. the Respondent No. 1 herein, has opposed the petition by filing a counter dated 6th June 2017. The following are their main contentions: a) The present Company petition is nothing but a gross abuse of process of law, and it has filed with an ulterior motive to stall this Respondent and other secured Creditors from enforcing their securities, under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) as the process of recovery is at an advanced stage, where in one of the secured asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the purpose of reviewing and finalizing, not only mode of recovery of their respective outstanding amounts but also to enforce their common security interest created by the Petitioner. This Respondent, the IDBI Bank Ltd. the State Bank of India, and the Development Credit Bank, Karur Vysya Bank Ltd. constitute more than 75% of creditors in Value. In the last meeting held on 12-05-2017 among the representative of the respondents, IDBI Bank Ltd., the State Bank of India, and the Karur Vysya Bank Ltd. it was resolved to oppose the present petition. g) Therefore, they have prayed the Tribunal to reject the present petition with exemplary costs. 3. IDBI Bank Limited, the 2nd Respondent herein, has also filed separate a counter dated 14th June 2017, by opposing the Company petition. The following are main contentions raised in their counter: a. They have stated that, at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide 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 any further consideration. e. It is further stated that since May 2015, the officials of this Respondent Bank, and other secured creditors viz., Kotak Mahindra Bank Ltd. the State Bank of India, Development Credit bank and the Karur Vysya Bank Ltd. etc., have been periodically meeting for the purpose of reviewing and finalizing the modes of recovering their respective outstanding due amounts from the Petitioner Company, by enforcing the common security created in their favour. This Respondent Bank and the other secured creditors stated above constitute more than 75% of the creditors in value, and in the last meeting held on 12-05-2017 among the officials of the Respondent Bank and the other secured creditors referred above, it was resolved to oppose the present Petition filed by the Petitioner Company. 4. The Asset Reconstruction Company (India) Limited, the Respondent No. 3 herein, has also filed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding 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, however, limited stay, as extracted above was passed. As stated by the Financial Creditors/Banks, as clearly mentioned in their replies, several actions under SARFAESI and other acts have been initiated. 8. One of the fundamental points to be considered by Adjudicating Authority, in a proceeding initiated for CIRP under IBC under, is whether any possibility of resolution process upon analysing financial position of Defaulting Company. If it is found that there is no financial feasibility of reviving the Company in question basing on its financial position, it would be a futile exercise to initiate Insolvency process contemplated under IBC and liquidation of such a company would be an appropriate step without going through process of CIRP. In the instant case, as stated supra, the Hon'ble High court of AP, in the order dated 20th April, 2015, passed in C.P. No. 33 of 2013, on consideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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