9911796707
TMI Blog2020 (12) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... -6 has been filed. The Form is signed by Shri Gautam Chhabra, Director of Bourn Hall. His affidavit verifying the petition is at Pages 51 to 52 of the petition. As per resolution dated 31.10.2018 in EGM of members of Bourn Hall, any one director is authorised to sign and execute all necessary documents, applications and returns for the purpose of giving effect to the Special Resolution according consent of the members of Bourn Hall to the Board of Directors to make an application to the Tribunal for initiating CIRP under Section 10 of the Code. 3. In Part-III of Form No. 6, the names of the financial/operational creditors are given. There is only one financial creditor i.e. HDFC Bank Ltd. 127 suppliers of goods and services have been detailed. The address of correspondence of the financial/operational creditors, the total debt raised an amount in default as well as the date when the financial/ operational debt was incurred are given in Part-III of Form No. 6. It is stated that Bourn Hall runs the Bourn Hall Fertility Clinic, Greenwood City, Sector 40 Gurugram which provides assisted reproductive technology services, including in vitro fertilisation (IVF) to couples in need. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, the notice given to Hoda Abou-Jamra, Director of Bourn Hall was sent on 30.10.2018 at 9:07 PM or a meeting of the Board of Directors to be held on 08:30 PM on the same day. Notice of defect was given to explain the matter. Affidavit of compliance was filed vide Diary No. 4883 dated 18.09.2019 and application for condonation of delay was filed by CA No. 843 of 2019. Vide order dated 04.10.2019, CA No. 843 of 2019 was allowed and the delay in filing the affidavit was condoned. The affidavit of compliance filed vide Diary No. 4883 dated 18.09.2019 was taken on record. It is stated in the affidavit of compliance that the time standard of 09.07 PM as visible on the e-mail dated 03.10.2018 (Page 1102 of the petition) is due to the difference in the time zone of the sender and the recipient, as Ms. Hoda Abou-Jamra is a foreign national and operates an e-mail account ([email protected]) from outside of India and that Ms. Hoda Ahou Jamra gave her consent to attend the board meeting via video conferencing at 7:42 PM on 30.10.2019 after complying with all the applicable rules and laws. It is further undertaken that the e-mail was sent from the e-mail account of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was delay in filing the intervention application and time was granted for filing the same. The learned Senior Counsel for Bourn Hall objected to the admission of the application and relied on the decision of Hon'ble National Company Law Appellate Tribunal dated 1.12.2017 in Company Appeal (AT) (Insolvency) No. 81 of 2017 - Unigreen Global Private Limited vs. Punjab National Bank, New Delhi & ors. Considering the observations of the Bench made in the order dated 13.6.2019, the objections of the learned Senior Counsel were overruled and intervention application which may be filed, was directed to be heard on the next date of hearing. 11. Vide order dated 22.1.2020, it was noted that the learned senior counsel for Bourn Hall submits that Bourn Hall does not intend to submit any counter in the CA, as they are opposing and challenging the maintainability of the CA itself. 12. During the course of the hearing, it is pleaded by the learned senior counsel for Bourn Hall that all the requirements of the Code and the Rules, 2016 are complied with in the present case and since the Form-6 is complete, the Tribunal has no jurisdiction to entertain the intervention application. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of the application. (4) The Adjudicating Authority shall, within a period of fourteen days of the receipt of the application, by an order- (a) admit the application, if it is complete and no disciplinary proceeding is pending against the proposed resolution professional; or (b) reject the application, if it is incomplete or any disciplinary proceeding is pending against the proposed resolution professional : Provided that Adjudicating Authority shall, before rejecting an application, give a notice to the applicant to rectify the defects in his application within seven days from the date of receipt of such notice from the Adjudicating Authority. (5) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (4) of this section." 14. Section 10(1) of the Code states that application for initiating CIRP by a corporate debtor can only be filed where the corporate debtor has committed a default. In the present case, Bourn Hall has stated that it is evident from the several e-mails, legal notice for repayment of operational debt due, and the recovery suit filed by an operational creditor for recovery of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 requires filing of the statement of affairs made upto a date not earlier than 14 days from the date of application. It is seen that the application in the present case was filed by Diary No. 4296 on 05.11.2018 and that 03.11.2018 and 04.11.2018 were Saturday and Sunday and were thus closed days of the Tribunal. The statement of affairs as on 20.10.2018 is filed at Annexure A-11 of the petition. Taking into consideration the closed days of 03.11.2018 and 04.11.2018, the due compliance of filing of statement of affairs upto a date not earlier than 14 days from the date of application is taken as satisfied. We have discussed above that the names and addresses of the members of Bourn Hall with details of their respective shareholding was not furnished in the petition and that notice of defect in this regard was given on 13.06.2019. The affidavit of compliance was filed by Diary No. 3052 dated 18.06.2019 and thereby, the defect was removed. 18. In Part-II of Form-6, Shri Madan Gopal Jindal has been proposed as Interim Resolution Professional (IRP). His IBBI Registration No. is stated to be IBBI/IPA-002/IPN00137/2017-18/10352. The written consent of the IRP in Form 2 is stated to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 10 also, wherein the Hon'ble Supreme Court observed as "The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority". 21. In an application under Section 10, the 'financial creditor' or 'operational creditor', may dispute that there is no default or that debt is not due and is not payable in law or in fact. They may also oppose admission on the ground that the Corporate Applicant is not eligible to make application in view of ineligibility under Section 11 of the I & B Code. The Adjudicating Authority on hearing the parties and on perusal of record, if satisfied that there is a debt and default has occurred and the Corporate Applicant is not ineligible under Section 11, the Adjudicating Authority has no option but to admit the application, unless it is incomplete, in which case the Corporate Applicant is to be granted time to rectify the defects. 22. Section 10 does not empower the Adjudicating Authority to go beyond the records as prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the debt. The Hon'ble NCLAT has also held that non-disclosure of any fact unrelated to Section 10 and Form 6 cannot be termed to be suppression of facts or to hold that the corporate application has not come with clean hand except the application where the corporate applicant has not disclosed disqualification, if any, under Section 11. In view of this position of law, the intervention application cannot be accepted on the major contention raised. 22. The intervener has referred to arbitral award dated 6.2.2019 in its favour for Rs. 3,48,41,071, after adjustment of security deposit available with the intervener. The arbitral award is passed after the filing of the application u/s 10 of the Code and the same would be considered by the IRP as and when claim is made by the intervener during CIRP. 23. The intervener has submitted that no meeting of the directors/ shareholders of Bourn Hall ever took place on 30/31/.10.2018, but has placed no evidence on record to prove the contention. 24. Therefore, the intervention application No. CA 519/2019 is rejected. 25. Section 10(4)(a) of the Code provides for admitting the application, if it is complete and no disciplinary proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above, we appoint Mr. Madan Gopal Jindal, SCO 7-8, 4th Floor, Jandu Tower, Miller Ganj, G.T. Road, Ludhiana, Punjab-141003, Registration No. IBBI/IPA-002/IPN00137/2017-18/10352, Mobile No. 098141-70354, e-mail id: [email protected] the Interim Resolution Professional, with the following directions:- i) The term of appointment of Mr. Madan Gopal Jindal shall be in accordance with the provisions of Section 16(5) of the Code; ii) In terms of Section 17 of the Code, from the date of this appointment, the powers of the Board of Directors shall stand suspended and the management of the affairs shall vest with the Interim Resolution Professional and the officers and the managers of the Corporate Debtor shall report to the Interim Resolution Professional, who shall be enjoined to exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under Section 18 and other relevant provisions of the Code, including taking control and custody of the assets over which the Corporate Debtor has ownership rights recorded in the balance sheet of the Corporate Debtor etc. as provided in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
