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TMI Blog2021 (2) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... t Ltd (hereinafter called as 'Corporate Debtor') to implead M/s Inkel Limited as Additional Corporate Debtor in the above application (hereinafter called as 'Additional Corporate Debtor'). 2. The applicant submitted that he was appointed as the Project Manager by the Corporate Debtor for the modernization of Schools in Malappuram District w.e.f. 01.06.2018 vide his appointment letter dated 28.05.2018. It was agreed upon by the Corporate Debtor that the applicant shall receive a consolidated salary of Rs. 80,000/- (Rupees Eighty Thousand only) for the services he will provide in his capacity as a Project Manager. The Corporate Debtor pursuant to the same has been making payments to the applicant. Despite the applicant's efficient and dilige ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of service of the demand notice, neither the Corporate Debtor disputed the amount due, nor a repayment of the due amount has been brought to the notice of the Applicant, which clearly establishes that the Corporate Debtor is not in a position to pay its debts, occurred in the normal course of business. Thus, the Applicant took steps under the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process, by filing IBA. 5. The applicant further submitted that the shares of the Corporate Debtor company have been acquired by M/s. Inkel Ltd. and is having a control stake of over 65% of the shares of the Corporate debtor with effect from 01.12.2017. It is also stated that the said acquisition of shares was ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proposed respondent had further passed a special resolution in its Annual General Meeting to provide requisite corporate guarantee in favour of The Federal Bank Limited for and on behalf of Seguro Foundations & Structures Private Limited, a subsidiary company for availing working capital limit of Rs. 90,00,00,000/- (Rupees Ninety crores) sanctioned by the bank. It is further imperative to note that the erstwhile Managing Director of Inkel Ltd, Mr. Mohammed Sagheer is in fact the Managing Director of the Corporate Debtor even as on date. 7. From, the above it is clear that the proposed additional Corporate Debtor is in charge of the day to day affairs of the Company and is, therefore, responsible and liable for all the debts and liabiliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed under Section 9 of the I&B Code against M/s. Seguro Foundations & Structures Pvt Ltd. The matter was listed before this Tribunal on 16.09.2020. Notice was issued to the Corporate Debtor and the matter adjourned to 07.10.2020. Notice to the Corporate Debtor was served and AD card returned is on record. But the Corporate Debtor did not make representation before this Tribunal. Thereafter, the Operational Creditor filed this Interlocutory Application to implead M/s. Inkel Limited as additional Corporate Debtor in the application. 12. The question that arises for consideration is that whether the proposed party can be impleaded as an additional Corporate Debtor in an application under Section 9? 13. In order to arrive at a conclusion on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiation of Corporate Insolvency Resolution Process against them. 16. The Adjudicating Authority having failed to notice the same, we set aside the impugned order dated 12th March, 2018 and remit the case to the Adjudicating Authority, New Delhi Bench, for admission of the case if record is complete, after notice to the parties. 17. Before admission of the case, it will be open to the Respondents to settle the matter and in such case, the Appellant may withdraw the case. The Appeal is allowed with aforesaid observations and. directions. No cost." 16. From the above facts it is clear that the Corporate Debtor company have been acquired by M/s Inkel Ltd. and is having a control stake of over 65% of the shares of the Corporate Debtor wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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