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TMI Blog2020 (9) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... Avinesh Bala Krishna, Susheel Shankar, A. Murali, Sandeep Huilgol and R. Bhuuvaneswari, RP ORDER Rajeswara Rao Vittanala, j. 1. I.A. No.212 of 2020 in CP (IB) No. 165 of 2018 is filed by Radico Khaitan Limited, ('hereinafter referred to as Applicant/Operational Creditor') U/s 60(5)(a) of the Insolvency and Bankruptcy Code, 2016, R/w Rule 11 of the NCLT Rules, 2016 by inter alia seeking to order and direct substantive consolidation of the Corporate Debtors into a single proceedings solely for the purposes of CIRP in accordance with the provisions of the Code, including but not limited to the acceptance, confirmation and all other actions with respect to the resolution plan for the Corporate Debtors and any and all amendments or modifications thereto, in such consolidated proceedings, etc. 2. Brief facts of the case, as mentioned in the Application, which are relevant to the issue in question, are as follows: (1) The Applicant, as Operational Creditor, has filed CP(IB)No.165/BB/2018 by seeking to initiate CIRP in respect of B.T. F.C. Pvt. Ltd(Respondent No.1) on the ground that it has committed default for an amount of ₹ 5,72,49,000/. After consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd August, 2020 by supporting the Application and thus inter alia contended as follows: (1) CoC of R1 Company was constituted on 05.11.2019 consisting of: State Bank of India (R-3)(27 %) Ugro Capital Ltd. (R-4)( 73 %. The admitted claim amount of the Creditors of the Respondent No.1 Company amounts to ₹ 57,66,81,446/- The Respondent No.6 has later received claims from M/s. Vanivilas Co-operative Sugar Factory Limited on 09.03.2020 for an amount of ₹ 18,64,95,104/-and from the Deputy Commissioner of Excise Bangalore Urban District (North) Excise Department, Karnataka for an amount of ₹ 1,76,10,651/- on 08.07.2020. Therefore, total claim against the Respondent No.1 tantamount to ₹ 78,07,87,201/-. (2) The Respondent No.1 had two (2) distillery units, viz. Peenya Unit and Hiriyur Unit. The unit in Peenya is constructed on the land owned by Bangalore Dehydration and Drying Equipment Co. Pvt. Ltd, (the Respondent No.2). The unit in Hiriyur is built on the land which is owned by Vanivilas Co-operative Sugar Factory Limited. However, that lease/rental agreement between the R1 R2 with respect to the distillery unit situated at Peenya is not available with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total amount of ₹ 25,81,85,297/-. Accordingly, the case was finally admitted by an order dated 27th January, 2020 by initiating CIRP, appointing the Respondent as IRP, imposing moratorium etc. (2) The CoC of Respondent No.2 consists of only the secured creditors, namely, M/s. Urgo Capital Limited and State Bank of India and the land and building belonging to Respondent No.2 has been mortgaged to these secured Creditors. No other claim has been submitted to Respondent 7 till date. The Respondent observed that as per the books of accounts of the Respondent No.2 M/s. Bangalore Dehydration and Drying Equipment Co. Private Limited, there are no dues outstanding to this Applicant and there is no claim submitted by this Applicant to the Respondent No.7. There is no investment in the form of shareholding made between Respondent No. 1 2 and there is no relationship between these Companies, in the form of Holding or Associate Company. (3) Further, Respondent No.2 had given its industrial shed constructed on a small portion of its land to the Respondent No. 1 on lease. Except this arrangement, there is no other connection between the Companies and it is a normal business practic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No.3 4, Mr. Sandeep Huilgol, learned Counsel for the Respondent No.5 and Ms. R. Bhuvaneswari, RP for Respondent No. 2 through Video Conference. We have carefully perused the pleadings of all the Parties and the extant provisions of the Code and Rules made thereunder and the various decision cited by the Parties. 6. Shri Avinesh Balakrishnan, learned Counsel for the Applicant, after arguing the case, has also filed Written submission on 21.08.2020 by inter alia stating as follows: 1) The Plant and machinery in the land owned by Respondent No.2 at Peenya Bengaluru valued about 23.96 lakhs. Similar plant and machinery at Hiriyur not valued by Respondent No.6 as ingress was not permitted. The claims admitted by the RP of Respondent No.1 is INR 57,66,81,446/-. Further INR 18,64,95,104/- filed by Vanivilas Co-operative Sugar Factory Limited on 09.03.2020 and INR 1,76,10,651 filed by the Excise Department on 08.07.2020. The Land admeasuring 2 acres 36 guntas situated Sy. No. 15, 1st Phase, Peenya Village, Yeshwanthpur, Hobli, Bengaluru North Taluk and any other asset should be brought to the knowledge of the Tribunal by R7 i.e., the RP of Respondent No.2 company. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Accordingly, the case was admitted by an order dated 27th January, 2020 by initiating CIRP in respect of CD, appointing the Respondent No. 7 as IRP, imposing moratorium etc. And 180 days statutory period in this case was over on 25.07.2020. Subsequently, the instant case C.P (IB)No.165/BB/2018 filed by the Applicant herein was admitted on 27.09.2019, in which 180 days period was over on 25.03.2020. 9. It is relevant to point out here that the Applicant has suppressed the fact of earlier filing of I.A No. 59 of 2019 seeking to club the other C.P (IB) No.135/BB/2018, by interalia contending that both the Companies are controlled and managed by the family of MV Muralidhar and any other to be passed in this case would adversely affect the interest of Applicant. Therefore, the Adjudicating Authority has clubbed both the cases by an order dated 20th February, 2019. The Applicant knowing very well about the rights and status of Operational Creditor, under CIRP, under the Code, has filed the Company Petition, even though Arbitration Award was given in its favour. The Applicant has not questioned the order passed in other case but pursued its case for admission independently. The App ..... 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