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TMI Blog2020 (6) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... r admission of a petition under section 7 of the I and B Code, have been met in this case. It is found that the petitioner has not received the outstanding debt from the respondent and that the formalities as prescribed under the Code have been completed by the petitioner, this petition deserves admission - Application admitted - moratorium declared. - C. P. No. 2995/IBC/MB/2019 and M. A. No. 3182 of 2019. - - - Dated:- 24-6-2020 - Smt. Suchitra Kanuparthi (Judicial Member) And Chandra Bhan Singh (Technical Member) For the Petitioners : Disha Ponda instructed by AKR Advisors LLP, Vidyasagar Thota DGM in SIDBI. Anil Kumarpatil, Shashank Vaisampayan, Rahul D. Oak and Siddhesh S. Shetye, Advocates, representative in M. A. No. 3182 of 2019. For the Respondents : None ORDER CHANDRA BHAN SINGH (TECHNICAL MEMBER) - 1. The petitioner/applicant, viz., Small Industries Development Bank of India (hereinafter as the financial creditor) has furnished form 1 under rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter as the Rules) in the capacity of the financial creditor on August 2, 2019 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 31, 2018 to the corporate debtor and its guarantors. The financial creditor notice on April 5, 2019 has been issued upon the personal guarantors invoking guarantee rights under the guarantee agreements. The petitioner mentions that since no response was received from the side of the corporate debtor, this petition has been filed. 9. The financial creditor submits that the financial statements of the corporate debtor have been produced on record. The financial creditor also annexed the master ledger to show the outstanding dues. The financial creditor has annexed a certificate under section 2A of the Bankers' Books Evidence Act, 1891. The financial creditor also annexed the CIBIL report dated July 30, 2019. 10. The petitioner submits that the petition is complete in all respects, the petition ought to be admitted and the corporate debtor's corporate insolvency resolution process be initiated. 11. After this Bench had heard counsel of the petitioner and reserved its order on September 5, 2019 an intervener application M. A. No. 3182 of 2019 was filed in this petition. The applicants in this MA who are, as claimed by them, are part owners of the corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shushil Govindrao Uttarwar and Mrs. Kalpana Shushil Uttarwar. The interesting aspect is that they are also the directors of the corporate debtor's-company as is evident from the company master data maintained with the Registrar of Companies. 15. The applicants themselves mentions that they have acquired 44 per cent. of shares in the corporate debtor in November, 2018 and are in possession of the property of the corporate debtor and looking after all the expenses of the corporate debtor till date. This clearly brings out that, in fact the party which is in possession of the corporate debtor's-company is the applicants themselves in this case and have put an application against the corporate debtor's-company which they are in control of. 16. The edifice of the applicants argument is based on the memorandum of understanding dated December 10, 2018 as per which, the applicants were to have clear title of all the properties of the corporate debtor, which mainly are bungalows, studio apartments, etc. However, the first charge the corporate debtor's-company is with SIDBI, the financial creditor in C.P. No. 2995 of 2019. This is very clear from the agreement enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt/club house building admeasuring 132.25 sq. mtrs. (built-up), conference room admeasuring 286.22 sq. mtrs. (built-up), rest rooms admeasuring 56.46 sq. mtrs. (built-up), ser-vant room admeasuring 22.25 sq. mtrs. (built-up). (d) Restaurant/club house building admeasuring 132.25 sq. mtrs. (built-up), conference room admeasuring 286.22 sq. mtrs. (built-up), Rest rooms admeasuring 56.46 sq. mtrs. (built-up), ser-vant room admeasuring 22.25 sq. mtrs. (built-up). 9 (a) Collateral Security Sl. No. 2 First charge by way of equitable mortgage in favour of SIDBI of all immovable properties of the borrower, both present and future, situate in Plot Scheme Green Field having Plot Nos. 3 to 13, at Zharwad Village, Trimbakeshwar Taluka, Nashik District bearing GAT No. 1/1 (Part) admeasuring 8013.54 sq. mtrs. (out of total layout of 12923.77 sq. mtrs.) together with all the buildings First charge by way of simple mortgage in favour of SIDBI of all immovable properties of the borrower, both present and future, situate in Plot Scheme Green Field having Plot Nos. 3 to 12, at Zharwad Village, Trimbakeshwar Taluka, Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty of the corporate debtor and had effective control, they (the applicants) never thought it proper to appear before the Bench when admission of C. P. No. 2995 of 2019 was being taken up by the Bench. It is only after it was reserved for order on September 5, 2019 that these the applicants got active, knowing fully well that upon admission of the petition and commencement of CIRP, the control of the company would go away from the corporate debtor's hands which effectively the applicants were controlling. 20. It is in this background that this application was filed on september 19, 2019 under Diary No. 6719 which was subsequently converted into M. A. No. 3182 of 2019. 21. Subsequent to the petition C. P. No. 2995 of 2019 reserved for orders, the chronology of hearing and the brief of order taken in the hearings is as under : Sl. No. Date of hearing Diary/MA C. P. No. 2995 of 2019 Gist of order 1. 25-9-2019 MA/Diary No. 6719 of 2019 At the request of the applicant, matter adjourned to 9-10-2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e debtor immediately. Counsel for corporate debtor seeks time to take instructions. Matter adjourned to 8-1-2020. 9. 8-1-2020 M. A. No. 3182 of 2019 The petitioner side is directed to decide on the settlement within 2 weeks. Matter adjourned to 29-01-2020 for withdrawal 10. 29-1-2020 M. A. No. 3182 of 2019 The corporate debtor submits that the investor-in-waiting requires some more time to invest funds and seeks more time. Matter adjourned to 6-2-2020 11. 6-2-2020 M. A. No. 3182 of 2019 and also the main C. P. No. 2995 of 2019 The Bench sought clarification from the petitioner, i. e., financial creditor, (SIDBI) and matter adjourned to 12-2-2020. 12. 12-2-2020 M. A. No. 3182 of 2019 and also the main C. P. No. 2995 of 2019 Heard both the sides, i. e., the Intervener in 3182 of 2019 and the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as that of the corporate debtor continued defaulting on the draft settlement agreement. The Bench finally heard the petitioner and counsel in M. A. No. 3182 of 2019 and reserved its order in M. A. No. 3182 of 2019 and also on the admission of the petition. (C) In view of the above, it becomes very clear that the orders dated September 6, 2019 regarding admission of C. P. No. 2995 of 2019 for admitting and commencing corporate insolvency resolution process (CIRP) was not pronounced by the Bench and it was opened up again for re-hearing based on the intervening applicant who had filed M. A. No. 3182 of 2019. This application from September 25, 2019 till the time the hearing was closed on February 12, 2020, when the order was reserved , the Bench had heard this MA for settlement. This Bench also notes that this applicant is, in fact as owner, is in full control of the corporate debtor-company. The applicant in M. A. No. 3182 of 2019 was not only heard by this Bench, but the applicant was given ample time to arrive at a settlement of financial debt of the petitioner. However, this Bench has no doubt in its mind that the applicant used this period only to delay the admiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the provisions of moratorium as prescribed under section 14 of the Code shall be operative henceforth with effect from the date of order, and shall be applicable by prohibiting institution of any suit before a court of law, transferring/encumbering any of the assets of the debtor, etc. However, the supply of essential goods or services to the corporate debtor shall not be terminated during moratorium period. It shall be effective till completion of the insolvency resolution process or until the approval of the resolution plan prescribed under section 31 of the Code. 30. That as prescribed under section 13 of the Code on declaration of moratorium the next step of public announcement of the initiation of the corporate insolvency resolution process shall be carried out by the IRP immediately on appointment, as per the provisions of the Code. 31. That the interim resolution professional shall perform the duties as assigned under sections 18 and 15 of the Code and inform the progress of the CIRP and the compliance of the directions of this order within 30 days to this Bench. A liberty is granted to intimate even at an early date if need be. In brief the Bench orders t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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