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TMI Blog2020 (12) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the P L Account of ₹ 109,085,467.13. The net worth is therefore, clearly negative. Therefore, Bourn Hall has satisfied the condition that default has been committed by it. 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 - 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 attached at Annexure A-5 at Page No. 697. In the Form 2, the proposed IRP has certified that there are no disciplinary proceedings pending against with him with the Board or ICSI Institute of Insolvency Professionals. Therefore, the requirements of Section 10(3)(b) of the Code are also satisfied. Section 10(4)(a) of the Code provides for admitting the application, if it is complete and no disciplinary proceeding is pending against the proposed Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctive technology services, including in vitro fertilisation (IVF) to couples in need. It is submitted that Bourn Hall is facing dire financial situation and has committed several defaults in its payment. The instances of default in payment are given in Para 11 of the facts of the case (Page 15 of the petition). The copies of e-mails, letters, notices and other communications regarding default are stated to be furnished in Annexure A-1 (Colly) of the petition. 4. During the course of the hearing on 10.01.2019, the learned counsel for Bourn Hall inter alia contended that there was a decision in the Extraordinary General Meeting of the company, whereby the decision was taken for filing the petition under Section 10 of the Code. It was stated that the documents pertaining to holding of the Extraordinary General Meeting of the company have also been attached but the Board Resolution has not been filed. Notice of defect was thereupon issued to Bourn Hall. In compliance thereof, affidavit was filed by the authorized representative of Bourn Hall vide Diary No. 232 dated 17.01.2019 alongwith the copy of minutes of the meeting of the Board of Directors of the company at Annexure A-3 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able rules and laws. It is further undertaken that the e-mail was sent from the e-mail account of the Company Secretary at 7:37 PM Indian Standard Time on 30.10.2018 giving a notice of the board meeting to be held at 08:30 PM IST on the same day i.e. 30.10.2018. 8. Application for intervention on behalf of RNY Healthcare Services Pvt. Ltd. was filed vide CA No. 519/2019. It is stated that the applicant was the landlord of the corporate applicant for the premises at Block G, Greenwood City, Sector 40 Gurgaon, where the chief operations of the corporate applicant were existent before the filing of the present petition. It is submitted that Bourn Hall has stated that it is unable to pay its debts to its operational creditors while not disclosing true and material facts with reference to the holding pattern of Bourn Hall and deep pockets of its parent company and that ever since its inception, Bourn Hall has been funded by M/s. TVM Capital Healthcare Partners Ltd. (owning 100% equity in Bourn Hall International Pvt. Ltd. Cyprus) through M/s. Bourn Hall International Pvt. Ltd. Cyprus (holding 99.99% equity of Bourn Hal)l. Reference is also made to arbitral award by the Arbitral Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase and since the Form-6 is complete, the Tribunal has no jurisdiction to entertain the intervention application. Reliance in this regard is placed on the judgment of the Hon'ble National Company Law Appellate Tribunal (NCLAT) in M/s. Unigreen Global Pvt. Ltd. Company Appeal (AT) (Insolvency) No. 81 of 2017. It has also been pleaded that roving and fishing enquiry cannot be allowed and reliance in this regard is placed on order dated 20.07.2017 of the Hon'ble NCLT, New Delhi Principal Bench, CP No. 78(ND)/2017, Manmohan Malik, Director of M/s. Himalaya Simplot Pvt. Ltd. and another Vs. M/s. Simplot India Foods Pvt. Ltd. and others. It is further pleaded that the holding company and subsidiary company are distinct and reliance is placed on Vodafone International Holdings BV Vs. Union of India and another (2012) 6 Supreme Court Cases 613. The learned senior counsel for the intervener has pleaded that in view of the submissions made in the intervention application, the application under Section 10 of the Code be dismissed and the application be also rejected on the ground of concealment of facts and misconduct and falsification of the facts and wilful omission from the stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the several e-mails, legal notice for repayment of operational debt due, and the recovery suit filed by an operational creditor for recovery of debts due to the said operational creditor that Bourn Hall has committed a default in repayment of its debt. The copies of emails, notice and other communication are stated to be annexed as Annexure A-1 (Colly) of the petition. Further, in the facts of the case (Para No. 11-Page 15 of the petition), Bourn Hall has enumerated numerous instances of default in payment by it. The statement of affairs as on 20.10.2018 has been filed to show that as against capital account balance of ₹ 29,46,031.64, there is a debit balance in the P L Account of ₹ 109,085,467.13. The net worth is therefore, clearly negative. Therefore, Bourn Hall has satisfied the condition that default has been committed by it. 15. Section 10(3)(c) of the Code requires passing of the special resolution by the shareholders of the corporate debtor approving filing of the application. A true copy of the resolution passed in the Extraordinary General Meeting of the Members of Bourn Hall on 31.10.2018 is at Annexure A-14 of the petition and the consent of the members o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution 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 attached at Annexure A-5 at Page No. 697. In the Form 2, the proposed IRP has certified that there are no disciplinary proceedings pending against with him with the Board or ICSI Institute of Insolvency Professionals. Therefore, the requirements of Section 10(3)(b) of the Code are also satisfied. 19. We have discussed above that the only financial creditor is HDFC Bank Ltd. Its outstanding is ₹ 138,512.40 as on 20.10.2018 (Annexure A-11 of the petition). We have discussed above that notice was directed to be issued to HDFC Bank Ltd. and that the affidavit of service was filed vide Diary No. 262 dated 07.02.2019 alongwith postal receipt and tracking report showing that the item was delivered to the financial creditor. However, there has been no representation from HDFC Bank Ltd. during the present proceedings. 20. We have stated above that intervention application was filed by RMY Healthcare Pvt. Ltd. (CA No. 519/2019). In the intervention application, the major contention raised is that the holding company of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 prescribed under Section 10 and the informations as required to be submitted in Form 6 of the Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 subject to ineligibility prescribed under Section 11. If all informations are provided by an applicant as required under Section 10 and Form 6 and if the Corporate Applicant is otherwise not ineligible under Section 11, the Adjudicating Authority is bound to admit the application and cannot reject the application on any other ground. 23. Any fact unrelated or beyond the requirement under I B Code or Forms prescribed under Adjudicating Authority Rules (Form 6 in the present case) are not required to be stated or pleaded. 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 Applicant has not come with clean hand except the application where the 'Corporate Applicant' has not disclosed disqualification, if any, under Section 11. Nondisclosure of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proceeding is pending against the proposed Resolution Professional. We have already discussed above that the application is complete and that the proposed Resolution Professional has furnished Form No. 2 stating that there are no disciplinary proceedings pending against him with Board or ICSI Institute of Insolvency Professional. 26. Subject to the discussion in para No. 16 above, we therefore, admit the application under Section 10 of the Code of initiation of CIRP in the case of Bourn Hall International India Private Limited and direct moratorium and appointment of Interim Resolution Professional as below. 27. We declare the Moratorium in terms of sub-section (1) of Section 14 of the Code as under:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant 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 Section 18(1) (f) of the Code. The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the Corporate Debtor; iii) The Interim Resolution Professional shall strictly act in accordance with the Code, all the rules framed thereunder by the Board or the Central Government and in accordance with the Code of Conduct' governing his profession and as an Insolvency Professional with high standards of ethics and moral; iv) The Interim Resolution Professional shall cause a public announcement within three days as contemplated under Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 of the initiation of the Corporate Insolvency Resolution Process in terms of Section 13(1)(b) of the Code read with Section 15 calling for the submission of claims against Corporate Debtor; v) It is hereby directed that the Corporate Debtor, its Directors, personnel and ..... 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