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TMI Blog2019 (2) TMI 1847X X X X Extracts X X X X X X X X Extracts X X X X ..... objection in this regard found devoid of any merit. Whether the application is maintainable in view of the Interim order passed by the Hon'ble High Court of Chattisgarh, Bilaspur in Writ Petition (C) No. 1686 of 2017? - HELD THAT:- The applicant herein this case is not bared in filing the application under section 7 of the 18B Code. Though the proceedings initiated by the applicant before DRT is under challenge in civil court as well as before the High Court, the applicant being not prevented from exercising its option to file proceedings under the Code, the passing an order of admission in this case not at all amount to conflict of judgement as submitted on the side of CD. So it appears to me that ordering admission of this application does not violate any of the directions passed by the Hon'ble High Court Of Chattisgarh, Bilaspur - the objections raised on the side of the Corporate Debtor is found unsustainable under law. Necessary Relief - HELD THAT:- As per Section 7(3) of the Code the Financial Creditor shall, along with the application furnish record of the default recorded with the information utility or such other record or evidence of default. It is one amon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties to the extent of ₹ 18.00 crores granted by the Financial Creditor with the Registrar of Companies, West Bengal and the said charge was registered in the record of the ROC, West Bengal. 3. In order to secure the aforesaid Term Loan granted by the Financial Creditor, the Corporate Debtor executed a Deed of Hypothecation at Raipur on 04.09.2014 in favour of the Financial Creditor. As per the said Deed of Hypothecation dated 04.09.2014 the Corporate Debtor hypothecated in favour of the Financial Creditor pari passu charge on Hotel Asset which includes all its assets and movable properties of any kind belonging to the Corporate Debtor, which, now or hereafter from time to time during the continuance of this agreement, shall be brought in, stored, or to be in or about its premises or godowns at Bilaspur or at any other godown or be in course of transit from one godown to another or wherever else the same may be. 4. Two of the Directors of the Corporate Debtor namely Smt. Pinki Gupta and Smt. Neelam Devi Gupta executed an agreement of Guarantee at Raipur on 04.09.2014 whereby the said two Directors acted as Guarantors of the Corporate Debtor and had agreed to guarantee du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of the above demand notice dated 19.02.2016, the Corporate Debtor failed to repay the outstanding dues of the Financial Creditor and as such the Financial Creditor was constrained to issue possession notice under Section 13(4) of the SARFAESI Act, 2002, on 16.09.2017. 10. The Corporate Debtor neglected to adhere to the terms of sanction and the various loan documents executed by them from time to time and failed in repayment though they were granted ample opportunity as and when asked for by the Financial Creditor and grossly failed to keep its promises to regularize the loan accounts as agreed, assured and or promised by them. 11. The Corporate Debtor is not in a position to repay its admitted debts and is commercially insolvent and in addition to the monies payable to the Financial Creditor, the Corporate Debtor also owes huge amounts to other creditors also. To strengthen the contentions on the side of the Financial Creditor the following documents were produced along with the application:- (f) (h) (j) (a) Power of Attorney and Authorisation Letter in favour of the Applicant to file the application before the NCLT, Kolkata, and to receive the service of process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xure 'Q'. Upon the aforesaid contentions and on the strength of the above referred documents the Financial Creditor prays for passing an order of admission under Section 7 of the Code. 12. The Respondent Corporate Debtor entered appearance and filed reply affidavit contenting in brief the following:- The application has not been filed in proper form and in accordance with the relevant provisions of the Insolvency and Bankruptcy Code 2016, and the Rules framed thereunder as well as the National Company Law Tribunal Rules. The application suffers from suppression of material facts. The applicant bank has practised fraud. The applicant failed to disclose as to the pendency of a proceeding before other forum Of law. The applicant has only mentioned about pendency of application being O.A. No. 14 of 2016 before the Learned Debt Recovery Tribunal at Jabalpur but intentionally suppressed the material facts that the Company has challenged the said proceedings. 13. In O.A. No. 14 of 2016 the applicant is the Respondent NO. 1. The application under section 13(2) of the SARFAESI Act, 2002 has been filed challenging the illegality of the application which they have sourced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who has been described as a person authorized to present such application on behalf of the applicant. In view of such facts and circumstances, that there being no proper authority, the application should be dismissed at threshold. 17. The Corporate Debtor Company has entered into a Hospitality Sector by opening an International Brand Hotel named ' Courtyard by Marriatt at Bilaspur which is successfully in operation from March 2014. The Company has tie up with around 60 National and International Brands. The Company has also set up the Five Stare Hotel under the names and styles Of Courtyard by Marriott at the same site adjacent to the Mall. 18. First Parri passu charge on entire mall and hotel asset under the name and style of city Mall 36 1002/2, 1008/2, 1009, ward No. 1, Vikash Nagar, Opposite Minocha Colony, Bilaspur is available as primary security to the banks. First Parri passu Charge on the entire current assets of the company is available as collateral security. 19. The Mall was started in time but could not be operated effectively due to paucity of funds, said company has invested ₹ 52 Crores and promoters have infused almost ₹ 122 crores. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.60/- (Rupees Nineteen Crores Fourteen Lakhs Forty Two Thousand Five Hundred Sixty Five and Paise Sixty Only). 25. The Corporate Debtor issued a reply dated 12/04/2016 against the demand notice issued by the applicant. In continuation of the demand notice the Applicant Bank taken possession of the assets of the Corporate Debtor and pasted a possession notice on the City Mall 36. The proposed Interim Resolution Professional is not in accordance with the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The copy of the statement of accounts of the Applicant Bank do not speak that there is any default on the part of the said company towards the applicant for a sum of ₹ 24,05,55,704.00/- (Rupees Twenty Four Crores Five Lakhs Fifty Five Thousand Seven Hundred and Four Only) as on 31.01.2018. The statement of accounts as relied upon is full of discrepancies. 26. The record of default with non utility which is mandatorily required to be filled up has not been filled up on the ground that it is not applicable. The said application is not maintainable in the eyes of law which is not in proper form and suffers from gross suppression of material facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has contented in the reply affidavit that there is no default as alleged by the Financial Creditor, the documents produced on the side of the Applicant/Financial Creditor undoubtedly proves that corporate debtor(ln short CD) committed default in repayment as per the repayment schedule referred to in the Sanction Letter (Annexure 'G') and thereby the Financial Creditor classified the accounts of the Corporate Debtor as Non Performing Assets (NPA) as on 30.01.2016. More over default in repayment Of instalment due to its inability is admitted by the CD in its reply affidavit. In the meantime due to decrease in lease rentals, reduction of occupancy level, said company was not able to pay the instalment in time . This submission in the reply affidavit no doubt is and admission of default in repayment as alleged by the FC. Thus this is a case in which availing loan as alleged by the FC and default in repayment of the loan amount stand established on the side Of the FC. 31. The CD's main challenge in this application is that the applicant has no valid authority to initiate the CIRP and hence it is liable to be dismissed. According to the Ld. Sr. Counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eproduced below:- This is to certify that Shri B. Parvateeswara Rao, Son of Late B. Bhoolokam (P.F. No. 59208) aged about 55 years, at present posted as Assistant General Manager, Punjab National Bank, Katora Talab Branch, Raipur, having contact Mobile No. 9425501337, e-mail: [email protected] is hereby authorized to file Corporate Insolvency Resolution Process (CIRP) under Section 7 of the IBC, 2015 in the matter of M/S. City Mall Vikash Private Limited before the Hon'ble National Company Law Tribunal, Kolkata Bench, Kolkata. Shri B. Parvateeswara Rao, Son of Late B. Bhoolokam is also authorised to file the claim of Punjab National Bank before Hon'ble National Company Law Tribunal, Kolkata Bench, Kolkata and Mr. B. Parvateeswara Rao is also authorized to accept the service of the documents/summons from the Hon'ble National Company Law Board, Kolkata Bench. Sri B. Parvateeswara Rao is authorized to engage [d. Advocate/LegaI Council and to execute the Vakalatnama in their favour to file Corporate I insolvency Resolution Process (CIRP) under section 7 of the IBC, 2015 in the matter of M/s. City Mall Vikash Private Limited before the Hon'ble National Company Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dication in a proceeding which has been filed prior to the filing of the instant application before an appropriate forum of law, no further steps should be taken by the Hon'ble Bench to proceed with the said application since it may amount to conflict of judgement which is in effect affect the judicial propriety and discipline. 38. The applicant herein this case is not bared in filing the application under section 7 of the 18B Code. Though the proceedings initiated by the applicant before DRT is under challenge in civil court as well as before the High Court, the applicant being not prevented from exercising its option to file proceedings under the Code I am of the considered view that passing an order of admission in this case not at all amount to conflict of judgement as submitted on the side of CD. So it appears to me that ordering admission of this application does not violate any of the directions passed by the Hon'ble High Court Of Chattisgarh, Bilaspur. In view of the above said discussion the objections raised on the side of the Corporate Debtor is found unsustainable under law. 39. The Ld. Counsel appearing for the Financial Creditor citing Mobilox Innovation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt which would be meted out by the Financial Creditor and that requirement has been meted out though a Certificate from Information Utility Organization has not been produced. 43. The 2nd requirement as per Section 7(3)(b) is to propose the name of a Resolution Professional. The name has been proposed and Form 2 has been produced on the side of the Financial Creditor. As per the written communications there is no disciplinary proceeding is pending against the proposed Resolution Professional. Being satisfied that the application is complete and the FC has established existence of default in repayment of the loan amount as alleged, this application is liable to be admitted. Accordingly, the application filed under Section 7 of the I B Code, is admitted upon the following orders:- ORDER (i) This application filed by the Financial Creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, City Mall Vikash Private Limited is hereby admitted. (ii) I hereby declare a moratorium and public announcement in accordance with Sections 13 and 15 of the IBC, 2016. (iii) The moratorium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Insolvency Professionals of ICAI having Registration NO. IBBI/IPA-001/ IP-P00120/ 2017- 18/ 10255, Telephone NO. 9425007441, E-mail: [email protected] is appointed as Interim Resolution Professional for ascertaining the particulars of creditors and constituting Committee of Creditors for evolving a resolution plan. (xi) The Interim Resolution professional should convene a meeting of the committee of Creditors and submit the resolution passed by the Committee of Creditors and submit the resolution passed by the Committee Of Creditors and shall identify the prospective Resolution Applicant within 105 days from the insolvency commencement date. (xii) The registry is hereby directed under Section 7(4) of the Insolvency and Bankruptcy Code, 2016 to communicate the order to the Financial Creditor, the Corporate Debtor and to the interim resolution Professional by Speed Post as well as through e-mail. 44. List the matter on 28/03/2019 for the filing of the progress report. 45. Certified copy of the order may be issued to all the concerned parties, if applied for, upon compliance with all requisite formalities. - - TaxTMI - TMITax - Insolvency & Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X
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