9911796707
TMI Blog2017 (8) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Being found that the winding up petition was admitted and Official Liquidator was appointed Hon’ble NCLT Special Bench New Delhi dismissed the petition filed by Nowfloats Technologies Pvt. Ltd case. On the other hand, in M/s. Vasan Health Care Pvt. Ltd case the Hon'ble High Court of Madras passed an interim stay of the operation of the order passed by NCLT and referred the question of law raised by it to a Division Bench. Similarly, the corporate debtor in the M/s/ Vasan Health Care Pvt. Ltd case preferred an appeal against the very same order of Hon’ble NCLT, Madras Bench before the Hon'ble National Company Law Appellate Tribunal, New Delhi. In the said decision cited above the Hon’ble Appellate Tribunal observing the applicability of S.238 of the Code in the said case declined to entertain it because the corporate debtor already availed another remedy and with that observation, appellant is permitted to withdraw the appeal. In view of the above-said discussion, it appears to us that this Tribunal has got jurisdiction to entertain this petition under S.7 of the I&B code,2016 Respondent did not raise any dispute regarding the assignment of debt in favour of the petitioner her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petition is the following 2. The Corporate Debtor has availed various credit facilities from the State Bank of India. SBI granted credit facilities of Term Loan for an overall limit of ₹ 61,000,00,00/- in June 2008. In July 2010, it enhanced credit facility of ₹ 70,4400,000/- and further enhanced credit facility to ₹ 73,63,00000/- in the month of January 2014. The total amount of debt granted by the SBI in favour of the Corporate Debtor is shown in Annexure -C (Pg. 17) The petitioner contends that the corporate debtor failed to repay the loan amount and committed default in repayment as on 31.3.2014. The amount of default according to the petitioner as on 31.3.2014 is ₹ 127,0,368,412/-. A computation statement of the amount in default is shown in Annexure - D at (Pg. 18). Since the Corporate Debtor failed to repay the Loan Amount a demand notice under section 13(2) of the Securitisation Act, 2016 was issued to the respondent by SBI on 1.8.2014. The corporate debtor by availing the credit facilities also executed hypothecation agreements as shown in Annexure F to G (Pg. 19-56), Memorandum of Deposit of Title Deeds (Annexure H), Supplement Memorandum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with the petition. The written communication by the Interim Resolution Professional is also produced by the Petitioner and it is shown at Pg.344-357. Upon the above-said contentions, Petitioner prays for initiating corporate insolvency resolution process against the corporate debtor. 3. In reply to the contentions raised by the petitioner, the respondent corporate debtor raised the following contentions. The petition is not maintainable. The petitioner suppressed material facts. This Tribunal has no jurisdiction to entertain this petition. The Petitioner has no locus standi to file the application since the assignment in favour of the petitioner by the SBI is under challenge before the Debt Recovery Tribunal-III, Kolkata. Mr. Meghraj Deshmukh has no authority to initiate a proceeding under the I B Code for want of specific authority. By taking steps under section 13 (4) of the SARFAESI Act, 2002 and taking possession of secured assets of the respondent petitioner is barred from initiating proceedings before the Hon ble Tribunal. Against the order of taking physical possession by District Magistrate, the corporate debtor preferred an appeal as SA. 551 of 2016 before the DRT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plinary proceeding is pending against the proposed Interim Resolution Professional. However, in the instant case, the respondent raised certain questions about the maintainability as well as the jurisdiction of this Tribunal to entertain this petition. The first ground the respondent raised is that Mr. Meghraj Deshmukh has no valid authority to initiate proceedings under the Insolvency and Bankruptcy Code, 2016. The learned counsel for the respondent submits that the Board Resolution annexed to the petition does not reflect authority to Mr. Meghraj Deshmukh to initiate proceedings before this Tribunal and that the affidavit Mr. Meghraj Deshmukh verified is for filing an application before NCLT, Bengaluru Bench. Truly, the affidavit of verification filed by the petitioner along with the petition shows that it was prepared for filing before NCLT, Bengaluru Bench. The petitioner was permitted to file supplementary affidavit curing the defect and petitioner has filed the supplementary affidavit on 10 th August 2017 showing the correct cause title in which Tribunal he is filing the affidavit. Therefore, the contention that there is no valid affidavit filed by the petitioner is found de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hraj Deshmukh is a duly constituted attorney to appear and file insolvency resolution process before this Tribunal. Accordingly, we hold that petitioner has got the authority to file a petition of this nature and that this petition is maintainable under law. This issue is answered accordingly. Issue No. 2 10. The next contention on the side of the respondent is that the petitioner is not an assignee of the original creditor and that he is challenging the assignment deed in favour of the petitioner and therefore petitioner is not entitled to file petition under section 7 of I B Code, 2016 as an assignee of the original creditor. The petitioner filed the petition under section 7 as a financial creditor on the strength of an Assignment Deed dated 26/11/2014 executed by the original creditor, the State Bank of India by transferring the debt owed by the respondent in favour of the petitioner. Petitioner contents that on the strength of the assignment deed he can very well file an application under the I B Code, 2016. As per S.7 of I B Code,2016 a financial creditor can file a petition of this nature. So, the question is whether an assignee of a Creditor comes under the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case, produced three letters addressed to the petitioner by the respondent expressing respondent's willingness to settle the liability owed by the respondent to the petitioner. Those letters are Annexures EE, FF, and GG. The above-said letters indicate that the respondent never disputes the transfer of debt in favour of the petitioner and showed his willingness to settle it. Therefore, we found no merits in the contention of the respondent that the assignment deed does not confer any right on the petitioner to file a petition of this nature. 14. At this juncture, it is also good to refer certain citation and unreported judgments brought to our notice on the side of the petitioner. Punjab National Bank and Ors. CP(IB)No.15/Chd/CHD/2017 (MANU/NC/0366/2017) NCLT, Chandigarh; Alchemist Asset Reconstruction Company Ltd Vs. M/s Hotel Gaudavan Pvt. Ltd (CP No.(IB)/23/PB/2017 NCLT Principal Bench, New Delhi; SBI Vs. M/s Garg Inox Ltd (IB.No.(IB) 194/(ND)/2017 and Union Bank Of India Vs. Guruashish Construction Pvt. Ltd. (CP No 1061/I BP/2017 NCLT Mumbai are the decisions referred by the Learned Counsel for the petitioner. 15. In Panjab, National Bank case the Bank b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with cost. 20. In answering issue no 2 we hold that pendency of proceedings under SARFAESI Act before a DRT will not debar the right of a financial creditor to file an application under S.7 of 17B Code. 21. Company petition No.588 of 2015 seems to have filed by Dhanlaxmi Bank Ltd. against the respondent herein under the Original Jurisdiction of Hon'ble High Court of Kolkata for the realisation of money lent and advanced to the respondent. The Hon'ble High Court of Kolkata observed prima facie that the Bank is entitled to the amount claimed in that petition and adjourned the proceedings for further orders to 13 th April 2017. 22. Company Petition 803 of 2013 seems to have filed by one another Operational Creditor, Ensemble Infraction Pvt. Ltd as against the respondent before the Hon'ble High Court of Calcutta under S. 433,434 and 439 of the Companies Act, 1956 alleging default in repayment of a sum of ₹ 1,16,67,100/-. That petition was challenged by the respondent. The petitioner in the said case seems to be the supplier of furniture to the respondent. The Hon'ble High Court doubted the bona fide of the defence taken by the respondent and directed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccupied by or in the possession of the corporate debtor. 26. A reading of the above-referred section it is understood that continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of Law would stand stayed. 27. At this juncture, it is also good to read the relevant portion of Notification S.0 3676 (E), dated 07-12-2016 issued by the Central Government. It read as follows:- S.O.3676(E), dated 07-12-2016 1. This order may be called the Companies (Removal of Difficulties) Fourth Order,2016. 2. It shall come into force with effect from the 15 th December 2016 3. In the Companies Act, 2013, in S.434, in Sub. S(l), in clause (c), after the proviso, the following proviso shall be inserted, namely: Provided further that only such proceedings relating to cases other than winding up, for which orders for allowing or otherwise of the proceedings are not reserved by the High Court's shall be transferred to the Tribunal: Provided further that- (i) all proceedings under the Companies Act, 1956 other than the cases relating to winding up of companies that are reserved for orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble NCLT on the strength of sub section (1) of S. 14 read with S. 238 of the Code viewed that provisions of insolvency code shall have overriding effect over any other law which is inconsistent with the provisions of this Code . Upon the above-said view, the Hon'ble Tribunal admitted the petition. 31. However, the Learned counsel for the respondent at this juncture cited the following decisions stressing an argument that this Tribunal cannot proceeds with this petition in view of the pendency of winding up petition before the Hon'ble High Court Kolkata. The decisions are the following: - Nowfloats Technologies (p) Ltd. [2017] 84 taxmann.com 26 (NCLT- New Delhi) (SB); M/s. Vasan Health Care Private Ltd ( CP.No.267 of 2015) of Hon ble High Court of Madras and Vasan Health Care Pvt. Ltd (Company Appeal(AT) (Insol) No.41 of 2017 of National Company Appellate Tribunal, New Delhi. 32. The facts in the above-referred decisions are not like the facts in issue in the case in hand. In the above-said case winding up petition was admitted and Official Liquidator was appointed. Being found that the winding up petition was admitted and Official Liquidator was appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability for an amount of ₹ 85 crores and 86 crores respectively. In one another letter, the respondent (Annexure-GG at P. 343) requested for one-time settlement of the dues for an amount of ₹ 89 crores. What is revealed from the above-referred documents is that the respondent did not raise any dispute regarding the assignment of debt in favour of the petitioner herein by State Bank of India and showed its willingness to settle the liability. The petitioner succeeded in establishing its entitlement to recover the debt from the respondent. It has come out in evidence that respondent defaulted in repayment of the debt due to the petitioner. Therefore, the existence of default in repayment of loan amount received by the Respondent stand proved in the instant case. The application is found otherwise complete. The petitioner has proposed the name of Mr. Kuldeep Verma, an Insolvency Professional registered with the Indian Institution of Insolvency Professional of ICAI having registration no. IBBI/IPA-00/IP-P00014/2016-17/10038, 3, Jagabandhu Modak Road, Kolkata-700005 as interim resolution professional. His consent letter and written communication are produced along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
